Eugene Volokh's Blog, page 2696
October 7, 2011
Complaint Against Religiously Themed Residential Drug-and-Alcohol Recovery Program: "The Respondent ... Teaches Against Homosexuality"
That's part of the Louisville Human Relations Commission complaint filed by the Lexington Fair Housing Council (a local nonprofit) last year against Teen Challenge; the nonprofit also alleged that Teen Challenge discriminates based on sexual orientation in housing. The full allegation:
The Respondent provides housing in Lexington, Kentucky that is open to individuals of all religions, but teaches against homosexuality and has a preference for [individuals] who are not gay.
The director of another fair housing of advocacy group in the area echoed this view, according to the Louisville Courier-Journal, Apr. 13, 2011 (payment required):
"I do think they're in violation of the Fairness Ordinance," [said Chris Hartman, the director of another fair housing advocacy group]. Discrimination could be in the form of trying to persuade women to change their lives or harassing them "by preaching against it," he said....
As of April, the complaint was still pending with the Human Relations Commission; I'm trying to figure out if more has happened to it since.
UPDATE: Just to make it clear, my concern here is with the claim that the very teachings against homosexuality are illegal in a residential setting such as this one; I think that it would violate the Free Speech Clause for the Commission to hold that such teachings violate the law. Requiring Teen Challenge not to discriminate based on sexual orientation in selecting residents is a separate matter. Such a requirement would not violate the Free Speech Clause; nor would it violate the Free Exercise Clause, even if Teen Challenge claimed that it felt a religious obligation to exclude lesbians (though in that case it might violate the Kentucky Constitution's religious freedom guarantee, if Kentucky courts decide to interpret that provision as securing a limited right to religious exemptions from generally applicable laws).
Elf on the Shelf v. Elf off the Shelf
A new copyright and trademark parody case, CCA and B, LLC v. F + W Media, Inc. (N.D. Ga. Sept. 22, 2011), which finds that defendants' Elf off the Shelf parody is likely not an infringement of the copyright or trademark in plaintiffs' Elf on the Shelf. The judge, by the way — Amy Totenberg — is the sister of NPR legal affairs correspondent Nina Totenberg.
Oral Argument in the Hosanna-Tabor Religious Freedom Case
Yesterday, the Supreme Court held oral arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a key religious freedom case that Eugene Volokh blogged about here. SCOTUSblog has a round-up of coverage of the argument. I found this exchange particularly telling, as the federal government did itself no favors by taking the extreme position that the Free Exercise Clause of the First Amendment isn't even implicated when the state uses antidiscrimination law to challenge the firing of church employees — even if the latter are ministers or have religious duties:
At one point, Justice Elena Kagan asked Ms. Kruger whether she believed that a church has a right grounded in First Amendment religious protections to hire and fire employees without government interference.
Kruger answered that the government was basing its argument on the freedom of association, rather than the parts of the First Amendment that deal with religious freedom.
"We don't see that line of church autonomy principles in the religion clause jurisprudence as such," Kruger replied. "We see it as a question of freedom of association."
The position surprised several justices, including Justice Kagan, the Obama administration's former solicitor general, who said she found the comment "amazing." After the hearing, one representative of a religious association called the government's position a "full frontal assault on religious liberty."
Chief Justice John Roberts first raised the issue when he asked whether the administration considered anything "special about the fact that the people involved in this case are part of a religious organization."
Ms. Kruger said, no, that there was no difference whether the group was a religious group, a labor group, or any other association of individuals.
"That's extraordinary. That is extraordinary," Justice Antonin Scalia declared. "We are talking here about the free exercise clause and about the establishment clause, and you say they have no special application?"
We don't think that the job duties of a particular religious employee are relevant to the inquiry," she said.
Even former Obama Solicitor General Elena Kagan was "amazed" by the Administration's position. Obviously, however, the justices could potentially rule in favor of the EEOC on narrower grounds, though I am cautiously optimistic that they won't.
Since this issue is at the outer edge of my range of expertise, I think I will leave the real heavy lifting on this case to the law and religion experts, lest I violate my own rules about choosing blogging topics. But I did want to highlight this part of the oral argument for interested readers.
FULL DISCLOSURE: I participated in a moot session for University of Virginia Law professor Doug Laycock, who represented the Lutheran Church in this case. I thought he did a great job at both the moot and the actual oral argument itself.
Scalia on the Federalization of the War on Drugs
Justices Stephen Breyer and Antonin Scalia testified before the Senate Judiciary Committee yesterday. Scalia made the interesting argument that the creation of numerous federal drug crimes has reduced the quality of the federal judiciary:
Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.
Federal judges ain't what they used to be," he said during a rare appearance before the Senate Judiciary Committee..
The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. "It's not as elite as it used to be," he said.
He was responding to a question about what he sees as the greatest threat to the independence of judges.
I am no fan of either the War on Drugs or the federalization of criminal law. I'm even less of a fan of the combination of the two. And Scalia is certainly right to criticize Congress for federalizing too many petty drug crimes. Unfortunately, however, he himself has contributed to the problem (at least at the margin) by voting to uphold one of Congress' most constitutionally dubious extensions of federal drug law in Gonzales v. Raich, which I discussed here.
Can the Earth Survive the Longevity Revolution?
This is my final post for the week, and I just wanted to say that it's been great participating in the Volokh Conspiracy! I didn't get to all the topics which are covered in my book, so I hope my posts have made you curious about 100 Plus. One topic that may be of interest is how religion evolves in a longer-lived world. The answer will surprise you. So, now, on to the topic of the environment...
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Increased health and life spans may be a dream come true, but many worry that it could turn nightmarish owing to problems like overcrowding, resource depletion, and greater pollution. Living a long time might be wonderful on an individual basis, but if many people can do it, would the world still be a place in which we would want to reside?
This is a legitimate worry because both the U.S. and world populations continue to grow. For instance, in 1800 America's population totaled just over 5 million—that's fewer people than currently live in New York City. By 2011 that number had grown to over 311 million.
Likewise, the world population in 1800 was estimated at around 900 million and by early 2011 the U.S. Census World POPClock estimated that number at 6.8 billion. Of course, during that time the economy changed and living conditions improved significantly, driving up life expectancy by decades. Nevertheless, 6.8 billion is a big number. Can the planet and our societal structures handle any more people?
In his Essay on the Principle of Population (1798), Thomas Malthus advanced the thesis that population grows faster than our ability to provide for ourselves and thus will always be checked by famine, disease, and war. Malthus was wrong.
Consider the idea that more people automatically means less food for everyone. In reality, as population grew, so did our ability to produce food. Today, many around the world are struggling with obesity, or the consumption of too much food, all while the world's population has been growing. Since 1800, the price of wheat has been steadily declining and the daily intake of calories per capita in both the developed and developing countries has been on the rise.
Though it may seem counterintuitive, greater numbers of humans do not necessarily translate to fewer available resources. A key reason for this is that the more people there are, the more ideas there are, and more ideas lead to new and better ways of producing the things that we need.
Fiber optic cables, which turned out to be superior to copper as a conduit for data communications, were invented in response to prohibitively high copper prices. Analogous innovations have been engineered in the food industry, such as high-yield dwarf wheat that has saved countless lives in India and Pakistan, and crops that can flourish in areas with less pure or plentiful water.
As the innovations driving the longevity revolution improve the length and quality of our lives, concurrent improvements in the environment can be expected. Numerous studies have shown that the less people have to focus their energy on survival and meeting their basic needs, the more they care about making their environment cleaner. This pattern has occurred, and continues to occur, in developed countries like the United States and is now beginning in developing countries.
There are new technologies on the horizon that promise to make the planet a cleaner and healthier place. For instance, it looks increasingly likely that societies will be able to turn more of their waste into fertilizer or energy. Such processes, if they were to become common, would revolutionize the way we think about garbage, perhaps even creating new and vibrant competition to collect trash.
One method involves a field known as synthetic biology, in which engineering principles are applied to biological systems. Using DNA sequencing and synthesis, scientists can re-engineer organisms like bacteria, yeast, and algae, thereby creating mini chemical factories that can turn all sorts of waste, including paper waste and carbon dioxide, into fuel.
October 6, 2011
Steve Jobs Commencement Speech, 2005
With the recent passing of the remarkable Steve Jobs, it's a good time to post his inspiring 2005 commencement speech at Stanford University. It's only 15 minutes long. For my money, it's hard to beat.
Senator Reid Goes Nuclear
The Hill reports:
In a shocking development Thursday evening, Senate Majority Leader Harry Reid (D-Nev.) triggered a rarely used procedural option informally called the "nuclear option" to change the Senate rules. . . .
Reid appealed a ruling from the chair that Senate Republican Leader Mitch McConnell (Ky.) does not need unanimous consent to force a vote on a motion to suspend the rules to consider amendments after cloture has already been approved.
The chair, which was occupied by Sen. Mark Begich (D-Alaska), ruled under the advice of the Senate parliamentarian that Republicans had the right to force a vote on a motion to suspend the rules and proceed to President Obama's controversial jobs bill.
Republicans planned to use this right of the minority to embarrass Obama by showing that many Democrats do not support his jobs package as originally drafted. But Reid moved to kill their plan by appealing the chair's ruling, triggering a vote.
The Senate voted almost completely along party lines to overturn the chair's ruling, 51–48.
More from Roll Call and the Washington Examiner.
Rick Hasen comments:
This could have all kinds of implications for judicial nominations and the workings of the Senate across a range of issues if it is not quickly diffused.
Either this gets dialed back quickly or it escalates, and it does so at a particularly precarious time for Democrats, when Republicans have a realistic chance to control all the branches of the federal government next year.
Felony to Steal an Aluminum Can — or a Penny — in Texas
That's what it looks like, given a newly enacted state statute. Until recently, Texas Penal Code § 31.03 provided that theft is "a state jail felony if," among other things, "the value of the property stolen is less than $20,000 and the property stolen is insulated or noninsulated tubing, rods, water gate stems, wire, or cable that consists of at least 50 percent: (i) aluminum; (ii) bronze; or (iii) copper." But the new statute deletes the text from "insulated" to "50 percent," so that the new version now makes theft a felony when "the value of the property stolen is less than $20,000 and the property stolen is ... (i) aluminum; (ii) bronze; (iii) copper; or (iv) brass."
According to Wikipedia, most pre-1982 pennies would qualify, being copper, bronze, or brass, but probably more recent pennies would as well, if "brass" is just read as being a "metal alloy[] consisting mainly of copper and zinc." In any case, an aluminum can would pretty clearly qualify — and, again, we're talking about the theft being treated as a felony. And, of course, that means you'll lose your right to keep and bear arms as well as facing a longer sentence. Or am I missing something? Thanks to Charles Blevins for the pointer.
Speech at University of Mississippi School of Law on Eminent Domain Referendum Initiative Measure 31
On Monday, October 10, I will be speaking at the University of Mississippi School of Law on a Mississippi eminent domain reform referendum initiative, Measure 31 (which is on the ballot this November). The talk is sponsored by the University of Mississippi Federalist Society, and will begun at 12:30 PM in Room 2094.
Mississippi is one of only a handful of states that have not enacted any eminent domain reforms at all since the Supreme Court's controversial 2005 decision in Kelo v. City of New London, which ruled that the Constitution allows government to forcibly transfer private property to other private entities for purposes of "economic development." Forty-three other states have enacted new laws, though many of them are likely to be ineffective.
Mississippi has a considerable history of dubious takings. Republican Governor Haley Barbour is a prominent advocate of massive condemnations that transfer property to big business interests such as auto manufacturers. In 2009, he vetoed a legislative eminent domain reform billIn this article, I explained why the kinds of economic development takings Barbour supports generally create more economic harm than benefit.
Although Measure 31 is not perfect, it would be a major improvement over current Mississippi law, which allows a wide range of economic development takings for big development projects, and also defines "blight" so broadly that virtually any area can be declared blighted and condemned. The initiative precludes economic development takings almost entirely by forbidding the transfer of condemned property to private interests for at least 10 years after the taking. It does create an exemption to this rule for property that is unfit for human habitation or poses a "direct threat" to public health or safety. But that is much more restrictive than the state's current blight law. Broad definitions of blight that license abusive takings are a serious problem in many other states, including New York.
I will have more to say about Measure 31 at my presentation, and probably in a follow-up post that I will write after the talk for readers interested in the issue who are unable to attend.
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