Blog

Ed Whelan summarizes a Public Discourse essay arguing that the mere fact that a corporation earns a profit should not disqualify it for religious liberties.

1. “[O]ur laws regularly treat for-profit businesses as capable of forming and acting upon subjective beliefs, including beliefs about religion.… In the employment discrimination context, we have no problem finding that businesses can hold and act upon subjective beliefs about race, sex, sexual orientation, and even religion—and if businesses are found so to act, state and federal laws often hold them liable for discrimination. There is no principled basis for saying that for-profit businesses can form and act upon subjective beliefs about all of these other matters (and about religion, when discriminating), but cannot form and act upon beliefs about religion in other ways.”

2. “[O]ur laws do not treat the distinction between for-profit and non-profit entities as particularly significant in most contexts.… It is difficult to see why profit-making—which seems to have so little impact in so many areas of the law—should possess overriding importance in just one particular area: religious liberty.”

(On this point, I’d add that a nonprofit entity—say, a religious book store—could deal with the public in exactly the same way as a for-profit entity. It seems very strange that the religious liberty rights of the entities would differ based on their tax status.)

3. “[O]ur laws are frequently based on the simple reasoning that one way to pressure a business owner is to impose penalties on the business. This understanding supports the imposition of corporate criminal liability and corporate liability for impermissible discrimination under Title VII.… It is difficult, then, to see why the law should assume that religious business owners do not feel substantial pressure when the government imposes penalties on their businesses as punishments for religious exercises.”

The lecture notes are here. The live chat is here.

This is Edith Windsor, the face of United States v. Windsor.

This map shows the evolution of same-sex marriage in the United States.

Here are forecasts of projected support of same-sex marriage over the next eight years.

 

Texas Code 2.401 governs “common law” or “informal marriage”

Sec. 2.401.  PROOF OF INFORMAL MARRIAGE. (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1)  a declaration of their marriage has been signed as provided by this subchapter; or

(2)  the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

(b)  If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.

(c)  A person under 18 years of age may not:

(1)  be a party to an informal marriage; or

(2)  execute a declaration of informal marriage under Section 2.402.

(d)  A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.

Also relevant for our discussion is 2.001 (emphasis added):

Sec. 2.001.  MARRIAGE LICENSE. (a) A man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state.

(b)  A license may not be issued for the marriage of persons of the same sex.

 

The lecture notes are here. The live chat is here.

To get a sense of how large the Laurel region is in this case, it considers a 20 mile semicircle (Pi * 20^2 = roughly 1,200 sq miles!) of Camden, Burlington, and Gloucester County.

View Larger Map

The issue of affordable housing for families is still pressing–see this article from Times.

When Mayor Michael R. Bloomberg announced that the city was planning to develop new super-small apartments — called “microunits” — it represented another step toward his ambitious goal of building or preserving 165,000 homes for poor and moderate-income families across New York by 2014.

But some housing advocates, community leaders and elected officials say this latest proposal only highlights that one demographic group has been left out: large, poor families.

This group includes members as disparate as West Africans in the South Bronx, Hasidic Jews in Brooklyn and Bangladeshi in Queens, who are united by their inability to afford the high prices for large market-rate rentals and their inability to find publicly subsidized alternatives even as the overall housing stock has swelled.

Depends what Justice Kennedy has for breakfast. Let’s see if he has some Honey Smacks.

DIG ‘EM!

One of the more memorable lines in Justice Scalia’s Lawrence v. Texas dissent (not in a good way) was his reference to the so-called “homosexual agenda.”

 Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

…

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no morerequire a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

This colloquy from today’s arguments in Windsor between CJ Roberts and Kaplan reminded me of Scalia’s dissent, though it was a bit more tame. Roberts substitutes the “homosexual agenda” for the same-sex marriage “lobby.”

CHIEF JUSTICE ROBERTS: I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?

MS. KAPLAN: I disagree with that, Mr. Chief Justice, I think the sea change has to do, just as discussed was Bowers and Lawrence, was an understanding that there is no difference — there was fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples.

CHIEF JUSTICE ROBERTS: You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful, do you?

MS. KAPLAN: With respect to that category, 1 that categorization of the term for purposes of 2 heightened scrutiny, I would, Your Honor. I don’t -­

CHIEF JUSTICE ROBERTS: Really?

MS. KAPLAN: Yes.

CHIEF JUSTICE ROBERTS: As far as I can tell, political figures are falling over themselves to 7 endorse your side of the case.