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Published: Wed, 21 Feb 2018 00:00:00 -0500

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Everything You Wanted To Know About The Volokh Conspiracy: Podcast

Wed, 13 Dec 2017 09:05:00 -0500

"Intellectual honesty isn't just refraining from lying," says UCLA law professor Eugene Volokh in the newest Reason Podcast. "It's mentioning the arguments against you and explaining why you think that they're mistaken, as opposed to just omitting them, hoping that the audience isn't going to catch on." Volokh is the founder of The Volokh Conspiracy, "one of the most widely read legal blogs in the United States" [which] "has more influence in the field—and more direct impact—than most law reviews." The blog is written by mostly libertarian and libertarian-leaning law professors and court watchers, so we're excited as hell at Reason to now be hosting the Volokh Conspiracy on our website. It will remain editorially independent from Reason, though all of our readers will find much of interest and value in its content, which ranges from in-depth yet accessible glosses on the most important legal cases of the moment to disquisitions on pop culture. Volokh explained to me a few weeks ago that the blog began chafing under its home at The Washington Post partly because of that publication's paywall and partly because the newspaper would censor curse words even when they appeared in court documents that Volokh conspiracists were analyzing. When Volokh suggested would be a good home for the blog, I instantly agreed, only adding that we would insist on publishing curse words even when they weren't strictly necessary. In a wide-ranging interview about The Volokh Conspiracy, Volokh discussed the site's aims, why he thinks the government is sometimes right to force business owners to serve customers they don't like, and his high opinion (so far) of Donald Trump's appointments to the federal judiciary. In an age of deep polarization and intellectually mendacious debates, the Volokh Conspiracy remains a straight shooter when it comes to pursuing what its contributors see as the truth. "I hope even our libertarian readers appreciate that," says Volokh, "because then they know that when we do take a view that they agree with more, that's because we really, sincerely believe it and think it's the best argument, and sometimes perhaps they see that there are some points in which conservatives, or even liberals or moderates, might be more correct than the libertarian orthodoxy." Audio production by Ian Keyser. Subscribe, rate, and review the Reason Podcast at iTunes. Listen at SoundCloud below: src="" width="100%" height="300" frameborder="0"> Don't miss a single Reason podcast! (Archive here.) Subscribe at iTunes. Follow us at SoundCloud. Subscribe at YouTube. Like us on Facebook. Follow us on Twitter. This is a rush transcript. Please check any quotes against audio to ensure accuracy. Nick Gillespie: Today, we're talking with Eugene Volokh. He's a UCLA law professor and perhaps better known as the proprietor of The Volokh Conspiracy, a long-running legal group blog that I am excited to announce is coming to After being its own site and then being perched at The Washington Post for a long time, it is now coming to Eugene, thanks so much for talking to us. Eugene Volokh: Thank you very much for talking to me. Gillespie: Let's talk about The Volokh Conspiracy, which is obviously the premier group legal blog on the planet, I'm willing to say. There are, I guess, certain parts of Africa and some of the 'Stan' countries, I'm not familiar with their law blogs, but I'm pretty sure that The Volokh Conspiracy is still big there, too. What is the aim of The Volokh Conspiracy, for listeners or readers of Reason who may not be fully familiar with it? Volokh: Sure. We're mostly law professors, and we blog mostly about law. We also blog about whatever we please. Part of the aim is to have fun, for us to have fun, but the way we have fun is by talking to the public and often hearin[...]

Supreme Court Won't Decide Whether Civil Rights Act Bans Anti-LGBT Discrimination

Mon, 11 Dec 2017 16:45:00 -0500

(image) The Supreme Court will not yet step in to rule on whether federal laws against discrimination on the basis of sex also forbid discrimination on the basis of sexual orientation.

Today the top court declined to hear a lawsuit from a woman in Georgia who claims she was harassed and forced out of her job as a hospital security guard because of her sexual orientation. Lambda Legal, the LGBT-issue-focused legal group that represented her, argues that this violated Title VII of the federal Civil Rights Act of 1964.

That law does not explicitly mention sexual orientation as a protected category, and for much of its history it was treated as though orientation were not included. Many states have chosen over time to add sexual orientation and sometimes gender identity to their own discrimination laws. But Georgia has not.

There is, however, a Supreme Court precedent—established in 1989's Price Waterhouse v. Hopkins—that discrimination based on whether a person expresses stereotypical masculine or feminine behaviors counts as sex-based discrimination. In this security guard's case and similar cases, lawyers argue that discrimination over sexual orientation is rooted in sex-based stereotypes about how males and females should look and behave, and that Title VII therefore covers it after all.

This view of the law does have some federal court rulings supporting it, but it has not made it up to the Supreme Court for a final decision. The interpretation played a significant role in the Obama administration's decision to tell schools they must accommodate transgender students' restroom and locker room choices. The issue of transgender accommodation in schools was heading to the Supreme Court, but when Attorney General Jeff Sessions took over, the Department of Justice reversed its stance, taking the position that federal discrimination laws do not cover sexual orientation or gender identity. Tthe Supreme Court subsequently punted the bathroom case back down to the lower courts, leaving the matter somewhat unsettled as a matter of law.

An 11th Circuit Court of Appeals panel rejected the Georgia woman's claim in March. In April, the 7th Circuit Court of Appeals, which covers Indiana, Illinois, and Wisconsin, determined the opposite—that the Civil Rights Act does prohibit discrimination against gays and lesbians. So there is a split in federal court rulings, making the Supreme Court's decision not to hear the case a bit of a surprise.

The Supreme Court did not indicate why justices are declining to take the case. A representative from Lambda Legal said in a statement that they're going to keep pushing to get the issue in front of the Supreme Court. Unless Congress passes a law settling the matter one way or the other, this seems likely to end up before the Supreme Court eventually.

These Three Cases Define This Month at the Supreme Court Term: Podcast

Fri, 08 Dec 2017 14:45:00 -0500

The Supreme Court's docket is jammed with important cases if you care about individual liberty and limited government, none more so than Masterpiece Cakeshop v. Colorado, which pits religious expression against anti-discrimination laws, Carpenter v. United States, a case with massive implications for warrantless surveillance and tracking, and Christie v. NCAA, which challenges the ability of the federal government to "commandeer" state officials. In the latest Reason Podcast, Nick Gillespie talks with Senior Editor Damon Root, the author of the widely praised Overruled: The Long War for Control of the U.S. Supreme Court, about significance of these cases and their likely outcomes based on recent oral arguments. Root also analyzes how new Associate Justice Neil Gorsuch is likely to influence the decisions and how Donald Trump's picks for the federal judiciary are shaping up. Audio production by Ian Keyser. Subscribe, rate, and review the Reason Podcast at iTunes. Listen at SoundCloud below: src="" width="100%" height="300" frameborder="0"> Don't miss a single Reason podcast! (Archive here.) Subscribe at iTunes. Follow us at SoundCloud. Subscribe at YouTube. Like us on Facebook. Follow us on Twitter. This is a rush transcript—check all quotes against the audio for accuracy. Nick Gillespie: Today we're talking with Damon Root. He is a senior editor at Reason and he is also the author of Overruled: The Long War for Control of the US Supreme Court. And we're going to be talking with Damon today about the Supreme Court. The cases that are in front of it right now. And what is the likelihood that Neil Gorsuch, the newest associate justice is going to change the balance of power or maintain the status quo. Damon, thanks for talking. Damon Root: Thank you. Gillespie: So, what are the biggest and most important cases that you're tracking this season? Root: Well, I'd say the three biggest that are in front of the court right now, we have the gay marriage wedding cake case, we've got a case called Carpenter v. United States, which is about the Fourth Amendment and the warrantless acquisition of cellphone data by the government. The ability of the government to basically track your whereabouts with historical cellphone data, using records from cell towers and whether or not that's a Fourth Amendment violation. And then this case out of New Jersey, Christie versus NCAA, which is a 10th Amendment federalism case dealing with a federal law that basically makes it illegal for the states to legalize or in this case partially legalize, sports gambling. Gillespie: All right. Well, let's let's start with the gay wedding cake, and the baker. Should, as I think it was Austin Petersen the libertarian who is running for the Libertarian nomination, Libertarian Party nomination for president put it, should a Jewish baker have to bake, I guess, a homophobic Jewish baker have to bake a gay Nazi wedding cake? What is going on there? What are the basic facts of the case? And where do you see it going? And we just heard oral arguments about that as well. Root: The basic dispute is that this baker, his argument is that by being forced to create a custom wedding cake for a same sex marriage, that the government and the state, in this case the state of Colorado, is compelling him to speak. He has sincerely held religious beliefs and disapproves of same sex marriage for these sincerely held religious beliefs and to be compelled to create a custom wedding cake for gay marriage is his compelled speech. The government is forcing him to speak, he's an artist. He expresses his artistic view for the cake. Gillespie: Yeah. So is this a freedom of religion? Because obviously, it's all first amendment, but is it really freedom of religion? And I guess now I'm going to say [...]

Brickbat: Kiss This

Thu, 07 Dec 2017 04:00:00 -0500

(image) Police in Tanzania have arrested a woman, who wasn't identified by media, after video of her kissing another woman at a party was shared on the Internet. Homosexuality is a crime in Tanzania carrying up to a life sentence, and the government has cracked down on homosexuals since President John Magufuli came to power in 2015.

Kentucky Top Court to Consider Shop's Refusal to Print Gay Pride T-Shirts

Wed, 06 Dec 2017 13:15:00 -0500

(image) Kentucky's Supreme Court has agreed to hear a case about whether a T-shirt shop owner can decline to print gay pride shirts.

This case has been winding through the state courts for years. Way back in 2012, Hands On Originals refused to make T-shirts for a gay pride event in Lexington because the owner had a religious objection with printing anything with a pro-gay message. The city's public accommodation ordinances prohibit discrimination on the basis of sexual orientation, and the Lexington-Urban County Rights Commission ruled that the shop had violated this law.

As a matter of law, the commission was completely wrong. Forcing a T-shirt maker to produce a message and particular images for a customer is a clear and extremely obvious example of compelled speech.

Lower court rulings in Kentucky have already made it clear that antidiscrimination laws cannot be used to force a T-shirt company to print messages or symbols it finds offensive or disagree with. This is not a case about discriminating against gay people. It's a case where the government is trying to force a private business to distribute a message against its will.

Do not be surprised when the commission loses this case and loses badly. During the oral arguments yesterday for Masterpiece Bakeshop v. Colorado Civil Rights Commission, the justices spent much of the time debating and analyzing hypotheticals about whether cakes themselves are artistic expressions and therefore "speech." They discussed whether Colorado could force a baker to include a rainbow or a cross on a cake regardless of his or her feelings about such symbols.

Colorado had previously determined that a bakery could refuse to write on a cake Bible passages the bakers found to be offensive, so clearly even Colorado believes there were limits to what the government can compel bakers to make.

Even the justices who seem most inclined to rule against Masterpiece Cakeshop yesterday (by which I mean the more liberal justices, such as Ruth Bader-Ginsburg and Sonia Sotomayor) were clearly concerned with crafting a decision that protects people from being compelled to communicate a message they find offensive. The justices all recognized that the Masterpiece case is not merely about a business refusing to serve gay people; it was also a case about compelled speech and artistic expression.

Now, whether they'll decide that creationg a wedding cake is an act of artistic expression is very much up in the air. Yesterday's oral arguments, in my eyes, didn't give a solid indication of how the court will ultimately rule. And as Reason's Stephanie Slade (who attended the hearing) wrote yesterday, the ruling may well be very narrow and tailored to avoid establishing a broad precedent.

But in the Kentucky case, the precedents are already there: The government cannot use antidiscrimination laws to force a T-shirt shop to print messages it finds offensive. I would be absolutely shocked if the shop lost this case.

Can States Compel You to Bake a Cake Against Your Will? The Supreme Court Will Decide.

Tue, 05 Dec 2017 16:05:00 -0500

If cake artistry counts as speech, what doesn't qualify—and how do you tell the difference? That was the essence of the question the Supreme Court asked this morning during oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case centers on whether a state may, in the interest of preventing discrimination, require a private baker to produce a custom wedding cake for a same-sex marriage celebration. As Jack Phillips, the baker in question, put it yesterday in a USA Today op-ed, his creations are "not just a tower of flour and sugar, but a message tailored to a specific couple and a specific event—a message telling all who see it that this event is a wedding and that it is an occasion for celebration." Such a message in the case of a gay union, he wrote, "contradicts my deepest religious convictions." His lawyers argue that nonetheless forcing him to "sketch, sculpt, and hand paint" a cake, as the state civil rights commission has done, is "compelled speech" and a violation of his First Amendment rights. But wouldn't the same logic, the justices wanted to know, permit someone to turn potential clients away based on their race or religion as well? Could someone refuse to make a birthday cake for an African-American child by saying his religion tells him it's wrong to "celebrate black lives"? This is an important legal question, because unlike sexual orientation, race and religion are protected classes at the federal level—and laws against discrimination on those grounds have been frequently upheld. (In 1983, for example, the Court ruled that Bob Jones University could not claim a religious exemption to government desegregation efforts.) If Phillips' challenge to the Colorado rule necessarily implicates widely accepted decades-old protections against other forms of discrimination, it stands little chance of succeeding. Like it or not, the Court is not about to throw out a key provision of the Civil Rights Act. On the other hand, if there is some aspect of the Colorado policy that clearly separates it from (and makes it more egregious than) the laws that came before, the justices might be willing to side with the cake artist. Thus, their frequent attempts to get Phillips' lawyers to narrowly define a theory about when the state can or can't butt in. "What is the line?" Justice Stephen Breyer asked at one point. "The reason we're asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law." It wasn't just the baker's legal team that was pressed to state a limiting principle. When the attorneys representing Colorado took the floor, they were immediately interrupted with similar queries. Is there any form of compelled expression, the justices wanted to know, that would in the state's view cross the line? If the government can require you to make a cake against your will, what can't it do—and how do you tell the difference? Could a state force Catholic Legal Services to represent a same-sex couple in a wedding-related dispute, Chief Justice John Roberts asked, since the nonprofit happily represents heterosexual couples in similar situations? What about a case that involves words and not just images, Justice Ruth Bader Ginsburg suggested—would Colorado say a baker must spell out "God Bless the Union of Charlie and David" in frosting? Justice Samuel Alito wondered if a writer who gets paid to pen wedding vows for couples could be made to do so for a gay marriage. If any of these regulations fail, the justices were implicitly asking, what makes the Colorado law different? And if all these regulations are licit, well, what good is the Constitution? The Supreme Court is left with something its members clearly see as a difficult task: defining the contours of a state's power to require people to do what their religion tells them they may not. But the justices might have found a sort of get-out-of-jail[...]

Supreme Court Today Mulls Whether Bakers Can Be Forced to Make Gay Wedding Cakes

Tue, 05 Dec 2017 07:50:00 -0500

This morning the Supreme Court will be hearing arguments in a case that may determine whether businesses providing services for weddings— like bakers, florists, photographers—may decline to provide goods and services for same-sex couples based on their religious objections to gay marriage. In Masterpiece Bakeshop Ltd. vs. Colorado Civil Rights Commission, bakery owner Jake Phillips was ruled to have violated the state's anti-discrimination and public accommodation laws by declining to make a wedding cake for a gay couple. Phillips has countered that his speech is being compelled and his religious freedom is being violated by being forced by law to produce a cake for the couple. There will be some complicated questions before the court: Do religious freedom protections extend to decisions by a business not to serve certain customers? Is refusing to serve gay couples getting married fundamentally different from rejecting gay people entirely? Is baking a cake or creating a bouquet of flowers fundamentally an act of speech or artistic expression protected by the First Amendment? Is providing goods and services to a gay couple getting married the equivalent of recognizing and supporting same-sex marriage? The American Civil Liberties Union is representing the gay couple. The Alliance Defending Freedom represents the bakery and its owner. The Department of Justice under Attorney General Jeff Sessions has declared support for Phillips. The Reason Foundation (the nonprofit that publishes and Reason magazine), joined the Cato Institute and the Individual Rights Foundation in an amicus brief supporting Phillips. The brief argues the court should consider the creation of cakes and floral arrangements a form of expressive speech and urges the court to resist the mandate to provide these goods and services. Not all liberty-minded legal experts agree. Law professors Eugene Volokh and Dale Carpenter (of The Volokh Conspiracy group blog) have come down on the opposite side with a brief supporting the state of Colorado. They argue the act of cake-baking has not typically been seen as a form of expressive speech that should be protected by the First Amendment. This matters to Volokh and Carpenter, having previously argued that a wedding photographer should not be forced to provide services for a same-sex wedding because photographs and photography are recognized as a form of expression. Carpenter further explained to Reason in an email the circumstances of the Mastershop case encouraged them to align with the opposite side: "The particular facts of the case show a 20-second conversation where the baker said 'no' before even learning what the customers might want beyond a generic wedding cake. There was no discussion of words, images, or symbols. In our view, that's stretching the protection of 'speech' too far." Libertarians may be frustrated with the Supreme Court's decision not to address freedom of association between private businesses and customers. There is very little evidence the court will consider the larger concept of if, when, or how states or cities determine when businesses are allowed to reject customers. Government, in my opinion, should have to show a serious, significant, widespread problem threatening people's livelihoods before considering restricting the right of a business owner to refuse to associate or contract with certain customers. Wedding services do not, by any means, fall into this category of concern. I predict a close, narrowly tailored ruling, but I'm still undecided on which direction. Reason's Stephanie Slade will be at the court today listening to arguments. Expect a follow-up post later today about the nature of those arguments and the mood of the court.[...]

Here’s What Happens When You Accuse Michael Moynihan of Being in Denial About NAMBLA Because Maybe He’s Gay

Fri, 17 Nov 2017 14:17:00 -0500

By every account I've seen, including his own, Robert Mariani got a bum deal from the Daily Caller, the conservative website that relieved Mariani of his opinion-editor duties after he solicited a column from controversialist Milo Yiannopoulos about Kevin Spacey. So we invited the freshly unemployed young man onto The Fifth Column, the weekly podcast (and Sirius XM POTUS program) featuring Kmele Foster, Michael C. Moynihan and myself, to talk about this specific experience, ruminate on the potential pitfalls of skirting up to the acceptability edges of opinion journalism, and reflect on the values (or lack thereof) of publishing Milo and similar outrage-inducers in the first place.

It was on the latter point that things went pear-shaped. Moynihan asked Mariani what useful perspective Yiannopoulos brings, Mariani asserted that it was worthwhile to note that in "the '70s and '80s, there were NAMBLA floats at every single gay-pride parade," Moynihan disputed that assertion with some vigor, and we were off to the races. Here's the whole clip; fireworks are teased near the top, but the exchange really gets started around the 12-minute mark:

src="" width="100%" height="315" frameborder="0">

Some related reading:

* Me, on trolls vs. velvet-ropers

* Robby Soave, on Milo's "Sad, Aborted Free Speech Week Disaster at Berkeley"

* Elliot Kaufman, in National Review, on how "Campus Conservatives Gave the Alt-Right a Platform."

And here's Moynihan doing a Vice News piece on the fading provocateur himself:

src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0">

Australian Voters Say Yes to Gay Marriage Recognition (But There's More to Come)

Tue, 14 Nov 2017 19:50:00 -0500

(image) The results of Australia's mail-in referendum on same-sex marriage are in, and its citizens have significantly declared they would like to see their gay brothers and sisters tie the knot.

In the end, 61.6 percent of voters said yes to legally recognizing same-sex couples. And the country saw nearly 80 percent of its eligible citizens mail back their ballots.

But it's not entirely a done deal. This was a non-binding referendum, and does not actually force the country to recognize gay marriages. The country's Parliament is still going to have to vote to make it legal.

That's kind of what the rather unusual election was about. The more conservative component of the country's ruling coalition remained officially opposed to same-sex marriage recognition and would not allow its members to vote their consciences and defy the party's position. The polls though, showed that Australians widely supported same-sex marriage recognition. So the ruling government called for this nationwide referendum to ask the citizens one single question: Whether to legally recognize same-sex marriage.

This yes vote will now give members of parliament the political cover to go ahead and change the law. Prime Minister Malcolm Turnbull said he'll bring a bill before the Parliament before Christmas. While it appears same-sex marriage is inevitable, there's going to be a familiar-to-Americans fight over what sort of protections to include to account for private religious objections to recognizing same-sex marriages. Stay tuned for a new round of wedding cake wars, perhaps.

Brickbat: Get This Straight

Thu, 09 Nov 2017 04:00:00 -0500

(image) Camille LeNoir had a job offer from then-New Mexico State University womens basketball head coach Mark Trakh, her former coach at the University of Southern California, to work for him as an assistant. But two days before she was to leave for New Mexico, Trakh called and said he'd seen a video online in which LeNoir said she was no longer gay. In fact, she said she is now a Christian and believes homosexuality is wrong. Trakh rescinded the job offer.

Christian Cake Bakers and Gay Coffee Shop Owners: Why Freedom of Association Is for Everybody

Tue, 10 Oct 2017 12:50:00 -0400

A gay coffee shop owner in Seattle is getting viral attention for loudly ejecting a group of aggressive anti-abortion Christian activists from his business. Members of Abolish Human Abortion had been handing out rather vivid posters outside the shop that seem to link gay acceptance to the prevalence of abortion. They then came inside Bedlam Coffee and received service—until shop owner Ben Borgman angrily threw them out, declaring their views and their posters offensive. Watch his profanity-laced tirade below: src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0"> It's very easy to watch Borgman's rant and decide that, no, his shop shouldn't have to play host to a group of people who were just outside handing out fliers that he found offensive and that he felt attacked him personally. It's also easy to watch it and immediately think about the upcoming Supreme Court case about whether the government can force a baker to prepare wedding cakes for gay couples. And some, like the legal scholar Jonathan Turley, are doing exactly that. If a coffee shop owner doesn't want to serve a group whose positions he finds disagreeable and offensive, is that subtantially different from a baker refusing to do work for a same-sex marriage he finds offensive? Washington State's public accommodation laws prohibit discrimination on the basis of "creed," so Borgman cannot simply boot people out of his coffee shop for having Christian religious beliefs. But over at The Stranger, a Seattle alt-weekly, Katie Herzog argues that this case isn't religious discrimination but a disagreement about political positions: Not believing that woman should have autonomy over their own bodies is not actually a protected class in America, much like...gays. Looks like these folks have more in common than they thought. She's saying that Borgman isn't kicking them out because they're Christians, which would violate the state's laws; he's kicking them out because he finds their extreme anti-abortion positions offensive. The fact that these positions are informed by their religious beliefs is not relevant. What's fascinating about that argument is how it so closely tracks the response from bakers and florists who don't want to offer their services for gay weddings. They say that they're not discriminating against gay people: Gay people are more than welcome to come into their shops and buy cakes and flowers. Rather, they object to the concept of gay marriage and to the position that it should be treated similarly to heterosexual marriage, and they do not want to be forced to produce goods that suggest that they support it. By trying to come up with a justification as to why Borgman should allowed to boot these guys from his coffee shop without running afoul of state antidiscrimination laws, Herzog is essentially making the same argument: that this isn't discrimination against people for their identities, but discrimination against certain views. That's the sort of weird semantic contortions that come when you try to police the circumstances in which people can decline to do business with someone else. People want to preserve their own right to refuse to associate with others while limiting the others' ability to shun them. Using government authority to do this gives people an incentive to look for ways to punish people with whom you have disagreements. But it's more responsible, ethical, and most of all mature to suggest that both the coffee shop owner and the baker should be able to decide for themselves when they'll extend their hospitality. With neither the coffee shop nor the baker does a refusal to do business with these customers cause real, recognizable harms that justify government intervention.[...]

Left Loses its Mind Over Jeff Sessions Memo That Brazenly Restates Existing Law

Fri, 06 Oct 2017 18:40:00 -0400

The Human Rights Campaign (HRC) is angrily condemning a memo released today by Attorney General Jeff Sessions that it describes as "an all-out assault on LGBTQ people" creating "a sweeping 'license to discriminate'" in furtherance of President Donald Trump's "cynical and hateful agenda." The memo does this via provocative language such as "freedom of religion is a fundamental right of paramount importance" and "government may not interfere with the autonomy of a religious organization" by, for example, forcing an Orthodox yeshiva to accept female rabbinical students. Don't get me wrong—we're not exactly fans of Sessions here at Reason. But today's memo shouldn't make your list of reasons to dislike the man, who is much more fittingly criticized for being a lover of asset forfeiture and a drug warrior extraordinaire. Haters of the religious liberty memo seem to believe (or, perhaps more accurately, want you to believe) that it establishes a new right for businesses and government agencies to turn people away on the basis of sexual orientation or gender identity. They should be comforted, then, by the revelation that virtually everything in the document is merely a restating of existing law and Supreme Court precedent. For example, the notion that government doesn't get to second-guess the "reasonableness" of something a person believes her faith requires of her goes back at least to the 1981 Thomas v. Review Board decision (in which a majority of the Court held that "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection") and mirrors James Madison's famous assertion that "the religion then of every man must be left to the conviction and conscience of every man." The principle that Americans don't forfeit their rights when they enter into the public square was recently upheld in 2014's Hobby Lobby ruling, while the principle that government can't dictate a church's hiring practices (at least when it comes to "ministerial" positions) was unanimously reaffirmed in 2012's Hosanna-Tabor. The tenet that a law has to meet "strict scrutiny" if it substantially burdens someone's exercise of faith is lifted verbatim from the 1993 Religious Freedom Restoration Act that was signed with great fanfare by then–President Bill Clinton. The bullet point noting that freedom of religion applies to organizations as well as to individuals might seem radical, but it's literally rooted in Title 1, Chapter 1, Section 1 of the U.S. Code, which holds that "the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies." Employers have been prohibited from discriminating against workers or job applicants on the basis of religion since the passage of the Civil Rights Act of 1964, so that's not new either. (Although I've argued against that policy as an infringement of business owners' economic liberty and freedom of conscience, it is the law of the land as of now.) As for the idea that Washington cannot treat a religious organization differently than it does a secular one, that emerged in response to a series of attempts from the 19th century—motivated, it's widely accepted, by anti-Catholic animus—to disqualify faith-based groups from receiving government grant money and other public benefits. Such laws, known as "Blaine amendments," are on the books in a number of states, but the federal effort to pass one failed. More recently, Presidents George W. Bush and Barack Obama have worked to "level the playing field," in the White House's language, ensuring equal access to grants and benefits regardless of an organization's religious affiliation, so long as public funds aren't used for activities [...]

Sessions Releases Guidance on Protecting Religious Freedom; LGBT Groups Fear ‘Permission to Discriminate’

Fri, 06 Oct 2017 16:45:00 -0400

Today, as President Donald Trump's administration is announcing that employers with religious concerns will have an easier time getting exemptions from the birth control mandate, Attorney General Jeff Sessions has released a lengthy memo describing the Justice Department's approach to religious freedom. The timing is most likely not a coincidence. Sessions' 25-page memo discusses concerns about when the federal government may or may not impose mandates that violate the religious beliefs of businesses, and one of his points is bluntly titled "Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government." It references the Hobby Lobby Supreme Court case rejecting contraception mandates. The memo itself does not specifically reference gay or transgender people, but given that its instructions are about how Department of Justice agencies should take religious freedom issues in mind when enforcing laws, contracting, and distributing grants, there was an immediate concern from LGBT activist groups and allies that this was the "permission to discriminate" they've suspected the administration had been planning all along, but had not yet come. Chad Griffin, president of the Human Rights Campaign, certainly didn't hold back in blasting the potential impact on gay and transgender people: "This blatant attempt to further Donald Trump's cynical and hateful agenda will enable systematic, government-wide discrimination that will have a devastating impact on LGBTQ people and their families. Donald Trump and Mike Pence have proven they will stop at nothing to target the LGBTQ community and drag our nation backwards. We will fight them every step of the way." It's actually not terribly clear, though, that this memo makes much of a difference in how the current Justice Department will tackle LGBT discrimination issues because of how it is already tackling LGBT issues. Understand, the Justice Department under Sessions is already reversing many of the positions it held under President Barack Obama. The Justice Department is now taking the position that federal civil rights laws do not include gay and transgender discrimination under the aegis of sex-based discrimination. The Trump administration has already retracted the guidance from the Obama administration mandating that schools accommodate transgender students in use of public restrooms and locker rooms. And the Justice Department in an upcoming Supreme Court case has taken the side of a baker in Colorado who declined to make a wedding cake for a same-sex couple (Disclosure: so has the Reason Foundation). The Human Rights Campaign worries about some additional outcomes, though: That government officials themselves will be able to refuse to do their jobs when it comes to dealing with gay or transgender people (see: Kim Davis); and that federal contractors and faith-based organizations like hospitals would be able to discriminate against LGBT people and be able to refuse to provide services even in a crisis. So forget the wedding cakes: They're concerned about people getting turned away from hospitals or homeless shelters. I don't want to dismiss the possibility of that happening, but it's important to note that religious freedom laws like the Religious Freedom Restoration Act do not just give blanket permission for people to violate the law by wrapping themselves in some holy scripture. Sessions knows that, and part of his memo explains what government officials have to show if they're going to try to overcome a person's religious objections: So if the government can make a case that it has a compelling interest (like protecting public safety) and that it's taking the least res[...]

Legal Gay Marriages Begin in Germany; Australia Gets Mired in a Messy Referendum

Mon, 02 Oct 2017 13:50:00 -0400

On Sunday, Germany joined 14 other European countries (and the United States) in officially recognizing gay marriages. As has been typical in a country when the change starts, the first couple to be wed legally in the nation received a lot of press coverage—in this case, Bodo Mende, 60, and Karl Kreile, 69. Germany had a domestic civil partnership system in place since 2001, but it did not provide all the same legal rights in the country as a full marriage (in particular, the right to adopt). Why did it take so long for Germany to get on board? Chancellor Angela Merkel and her party opposed gay marriage recognition, and given party politics, that meant members of her party, the Christian Democratic Union, would be expected to vote no in any parliamentary effort to extend legal recognition to gay couples. That all changed in June. Part of the reason was purely political: Merkel calculated her party would need to maintain a coalition with the center-left Social Democrats after September's election, and the Social Democrats demanded support for same-sex marriage recognition. (The actual results of the election complicate Merkel's plans.) But her shift was also partly due to her own realization that homosexuality was not, in fact, an indication that a person was not capable of forming a stable, loving relationship suitable for children, as she discovered from communicating with a lesbian couple who had fostered eight children. In June, Merkel declared she was open to allowing her party members to have a "vote of conscience," meaning lawmakers would be allowed to decide for themselves whether to legally recognize same-sex marriages and would not be ordered to toe the party line. Days later, Germany's parliament did just that and voted to legalize recognition, starting October 1. City halls even opened on Sunday to marry off couples. Meanwhile, down under in Australia, the road to legal recognition for same-sex couples remains very, very messy. Gay marriage supporters, including members of the Liberal Democratic Party—a.k.a. the libertarians—have been pushing lawmakers to change the law to recognize such unions. But Australian supporters have had the same problem as Germany's supporters: Part of the ruling coalition has a formal stance against recognizing gay marriages and would not allow a "conscience vote" so that party members could decide for themselves. So even though Australian polls show the public widely supports same-sex marriage, they did not have the votes in the parliament. What Australia's ruling party has done instead is pushed it all into a nonbinding national vote through the mail. Australian citizens have all been sent a survey form and asked to mail it back indicating whether they thing gay marriages should be legally recognized. They have until November 7 to return their ballots. Because the vote is nonbinding, Parliament will have to act to legalize gay marriage, even if the majority votes yes. So fundamentally, the purpose of the vote is to give lawmakers political cover either way. The referendum has resulted in a massive media blitz from both sides to convince voters to support or oppose marriage recognition. Every Australian celebrity people might have heard of outside the country has declared support for a "yes" vote. This weekend saw the strategic deployment of Macklemore at the national rugby finals (essentially the country's Super Bowl) with a performance of one of only two songs anybody will ever remember about him, "Same Love." ("Thrift Shop" is the other one.) In the event you might have forgotten who Macklemore is, watch below: If you missed #Macklemore performing Same Love at the #NRL Grand Final here is the video[...]

Feud With Amber Tamblyn Shows James Woods' Confusion About Age-of-Consent Laws

Mon, 18 Sep 2017 13:35:00 -0400

Last week's Twitter feud between actors James Woods and Amber Tamblyn, which gave birth to an op-ed piece by Tamblyn in yesterday's New York Times, revealed some telling misconceptions about age-of-consent laws. Woods, despite his history of dating very young women, does not seem to understand that such laws vary from one jurisdiction to another. The feud started when Woods suggested that the film Call Me by Your Name, about a gay relationship between a 24-year-old and a 17-year-old, is helping to "quietly chip away the last barriers of decency." His tweet used the hashtag #NAMBLA, referring to the North American Man/Boy Love Association, which opposes age-of-consent laws. "Didn't you date a 19 year old when you were 60.......?" replied Armie Hammer, costar of the movie. Woods was 59 when he began dating Ashley Madison, who was 19 at the time. At 66 he began dating 20-year-old Kristen Bauguess. Here is where Tamblyn chimed in. "James Woods tried to pick me and my friend up at a restaurant once," she tweeted. "He wanted to take us to Vegas. 'I'm 16' I said. 'Even better' he said." Picking up on that anecdote, a Twitter user named Amanda Kendall asked Woods, "What makes a 24yo/17yo gay relationship inherently indecent but skeevy old guys trying to pick up a pair of 16 year old girls is okay?" Woods replied, "The first is illegal. The second is a lie." I don't know whether the incident Tamblyn describes actually happened. In her op-ed piece, which cites Woods' response to her claim as an example of the disbelief faced by victims of sexual harassment, she argues that she has no plausible motivation to make such a thing up. But Woods is clearly wrong when he definitively states that a sexual relationship between a 24-year-old and a 17-year-old "is illegal." To begin with, the age of consent in Italy, the setting of Call Me by Your Name, is 14. In this country, the age of consent is 16 or 17 in 39 states, so the relationship that Woods deemed indecent would be legal in all of those places as well. By contrast, the age of consent in California is 18, and there is no close-in-age exemption. In other words, any sex involving someone younger than 18 is a crime, even if the other person is also younger than 18. The only exception is for married couples. In California, which has no minimum age for marriage, minors can marry with parental consent and judicial approval. That policy is pretty puzzling, given that extricating oneself from a marriage is considerably more difficult than ending a sexual relationship. California law assumes that a 17-year-old is not ready for sex but allows that a 13-year-old might be ready for marriage (including sex). Woods not only assumes every jurisdiction has an age-of-consent law like California's; he erroneously equates legality with decency, a much more subjective concept. Many people probably would find the seven-year age gap between the characters in Call Me by Your Name (41 percent of the younger character's age) less objectionable than the 40-year gap between Woods and Madison (200 percent of her age) or the 46-year gap between him and Bauguess (230 percent of her age). If the concern is an imbalance of power, it is not at all clear why the fictional relationship is more disturbing than the real-life ones. Suppose California raised its age of consent for sex from 18 to 21. Would that retroactively render Woods' romantic relationships indecent or unethical? Or would he concede that such laws are inherently arbitrary, that reasonable people can and do disagree about what the cutoff should be, and that the goal should be ensuring genuine consent, as opposed to preventing outrage among those who think a particular pairing [...]