Topic: Law and Civil Liberties

Religious Agencies and Adoption: A Case for Pluralism

At Reason, Scott Shackford has a valuable piece on where libertarians’ interests are likely to coincide with those of organized gay rights advocates and where they are likely to diverge, following the Supreme Court’s ruling on marriage. One flashpoint of controversy is likely to be the role of conservative religious agencies in areas of adoption that are commonly assisted with public funds (as with the adoption of older kids from foster care). 

…It is now legal all across America for gay people to adopt children, and now with same-sex marriage, they can adopt their partner’s child as well. This fight is largely over, and was actually pretty much won even before gay marriage recognition.

But there is another side, and it ties back into the treatment of religious people. Some adoption agencies are tied to religious groups who do not want to serve same-sex couples or place children in same-sex homes. They are also typically recipients of state funding for placing children, and are therefore subject to state regulation. Should they be required to serve gay couples?

Some states, such as Illinois, attempted to force them. As a result, Catholic Charities, which helped the state find adoptive and foster home services for four decades, stopped providing their services in 2011. At the time, a gay activist declared this a victory, saying “Finding a loving home for the thousands in the foster/adoption system should be the priority, not trying to exclude people based on religious dogma.”…

Some libertarians I admire have taken the view that where any public dollars are involved, private social service agencies must be held to rigorous anti-discrimination standards. While I respect this view, I don’t share it. Programs that are explicitly voucherized (such as G.I. Bill college tuition benefits, which can be used for seminary study) often go to institutions that I might find discriminatory, and the same logic can apply even with some less explicitly voucherized benefits. If a state depot is dispensing gasoline to rescuers’ boats after Katrina, and Catholic Charities-operated boats spare the need for government boats to reach some rescue targets, the “subsidy” might in fact save the taxpayers money.

Government Forces Rock Solid Church Into a Hard Place

The Fifth Amendment prohibits the taking of private property for public use without just compensation. Still, Congress, regulatory agencies, and even the Supreme Court have each played their part in making receipt of just compensation practically impossible in certain scenarios.

Ministerio Roca Solida, a Nevada church, is one victim of this injustice. It owns a 40-acre parcel in Nevada’s Amargosa Valley entirely surrounded by a federally managed wildlife refuge. It uses this parcel for religious purposes; until an illegal intervention by the U.S. Fish and Wildlife Department, it performed baptisms in a spring-fed stream on the land.

In 2010, the government rerouted the stream to a higher elevation entirely outside of Roca Solida’s property; later that year, rainfall caused the stream to overflow its channel, flooding Roca Solida’s property and causing damage to its facilities. After making a statutorily mandated claim with the Department of the Interior and receiving no response, Roca Solida filed a lawsuit, seeking various kinds of relief for constitutional violations, the negligent waterway rerouting/flooding, and the taking of its stream.

Courtesy of Congress, Roca Solida was forced to split its claims between two different courts: district courts have exclusive jurisdiction over tort claims against the government, while the Court of Federal Claims has exclusive jurisdiction over monetary claims in excess of $10,000. The Supreme Court addressed the constitutional implications of this jurisdictional arrangement most recently in United States v. Tohono O’Odham Nation (2011), holding that a Civil War-era statute (28 U.S.C. § 1500) bars plaintiffs from pursuing monetary claims in the CFC while any other claims with “substantial overlap in operative facts” are pending in district court. Relying on Tohono, the CFC dismissed Roca Solida’s takings claim. The U.S. Court of Appeals for the Federal Circuit affirmed—though in concurrence, Judge Taranto noted that Tohono’s “application of § 1500 may soon present a substantial constitutional question about whether federal statutes have deprived Roca Solida of a judicial forum to secure just compensation for a taking.”

Gay Marriage Is Here - Now What?

That’s the title of a symposium that the Federalist published after the Obergefell ruling. It included mini-opeds from a range of people on both sides of the debate, including Newt Gingrich and Mike Lee. Here was my contribution:

Just because today’s opinion was expected by nearly everyone doesn’t make it any less momentous. In sometimes-soaring rhetoric Kennedy explains that the Fourteenth Amendment’s guarantee of both substantive liberty and equality means there is no further valid reason to deny this particular institution, the benefit of these particular laws, to gay and lesbian couples. Okay, fair enough: there’s a constitutional right for gay and lesbian couples to get marriage licenses—at least so long as everyone else gets them. (We’ll set aside the question of why the government is involved in marriage in the first place for a later time.)

But where do we go from here? What about people who disagree, in good faith, with no ill intent towards gay people? Will ministers, to the extent they play a dual role in ratifying marriage licenses, have to officiate big gay weddings? Will bakers and photographers have to work them? What about employment-discrimination protections based on sexual orientation—most states lack them, but are they now required? And what about tax-exempt status for religious schools, the issue that came up during oral argument?

It’s unclear to be honest—much depends on whether Anthony Kennedy remains on the court to answer these thorny questions in his own hand-waving way—but all of these examples, including marriage licensing itself, show the folly inherent in government insinuation into the sea of liberty upon which we’re supposed to sail our ship of life. (Justice Kennedy, you can use that one next time; no need even to cite me.)

If government didn’t get involved in regulating private relationships between consenting adults—whether sexual, economic, political, athletic, educational, or anything else—we wouldn’t be in that second-best world of adjudicating competing rights claims. If we maintained that broad public non-governmental sphere, as distinct from both the private home and state action, then we could let a thousand flowers bloom and each person would be free to choose a little platoon with which to associate.

But the extent to which we live in that world is decreasing at a horrendous pace, and so we’re forced to fight for carve-outs of liberty amidst the sea of mandates, regulations, and other authoritarian “nudges.”

In any event, good for the court today—and I echo Justice Kennedy’s hope that both sides will now respect each other’s liberties and the rule of law. But I stand ready to defend anybody’s right to offend or otherwise live his or her life (or run his or her business) in ways I might not approve.

You can read the other entries here, and also see Jason Kuznicki’s longer post on the future of “marriage policy” and Roger Pilon’s prescient piece from a few months ago.

Oregon Marijuana Policy

Part of Oregon’s Measure 91, passed in November and legally titled Control, Regulation, and Taxation of Marijuana and Industrial Hemp Act, goes into effect today. The new law allows men and women, 21 and older, to grow limited amounts of marijuana on their property and to possess a limited amount for personal, recreational use. Specifically, an Oregonian can possess up to eight ounces of marijuana and grow up to four marijuana plants in their homes. Each adult can possess up to an ounce in public, but one may not use marijuana in public.  §6 of Measure 91 lists all the guidelines that one would need to know about what is now legally permissible personal and household use under the new law.

The personal use and cultivation of marijuana will not be overseen by the Oregon Liquor Control Commission (OLCC). That agency will be tasked with overseeing the commercial use of marijuana, including licensing, taxing, and regulating. The review and acceptance of licenses will begin in January. Actual sale and purchasing of commercially grown marijuana will also begin sometime in 2016.

The fact that recreational use and private in-home ownership will now be legal has sparked some media interest. Particularly, the question has been asked: How can interested Oregonians begin their recreational use or home growing when there is no legal sale?  That’s a good question with respect to the lawful supply.  The underground market is fairly easy to find.

For related Cato work, go here and here.

Cato Continues Win Streak at Supreme Court, Government Does Abysmally Yet Again

After several blockbuster terms, this year was supposed to give a bit of a breather to Supreme Court watchers – but of course all that changed in November, when RobertsCare and same-sex marriage landed back on the justices’ laps. Looking back on the term, we see a few trends: fewer unanimous rulings than the last few years; more results that experts classify as “liberal” than “conservative” (though that’s a function of the vagaries of the docket); the lockstep voting of the liberal bloc contrasted against the inscrutability of Chief Justice Roberts and Justice Kennedy.

But despite the highs and lows of the last few decision days, when the dust cleared, there was one aspect of continuity that’s particularly gratifying to me: Cato continued its winning streak in cases in which we filed amicus briefs. While not as dominating as last term, we still managed to pull off an 8-7 record. I’m also proud to note that we were the only organization in the country to support the challenges to both the IRS rule on the ACA and state marriage laws.

Here’s the breakdown, in the order the opinions arrived:

Winning side (8): North Carolina Board of Dental Examiners v. FTCYates v. United StatesElonis v. United StatesCity of Los Angeles v. PatelHorne v. U.S. Dept. of AgricultureJohnson v. United StatesObergefell v. HodgesMichigan v. EPA.

Losing side (7): Heien v. North CarolinaPerez v. Mortgage Bankers Assoc.; U.S. Dept. of Transportation v. Assoc. of American RailroadsEEOC v. Abercrombie & FitchWalker v. Sons of Confederate VeteransTexas Dept. of Housing v. Inclusive Communities ProjectKing v. Burwell

Supreme Court to Consider Ending Forced Public-Sector Union Dues

Today, the U.S. Supreme Court announced that it would hear Friedrichs v. California Teachers Association, which asks the court to consider whether compulsory public-sector union dues violate the First Amendment right to free speech–which includes the right to be free from compulsory speech. The Cato Institute filed an amicus brief supporting the petitioners’ request that SCOTUS hear the case.

In 26 states, public-sector unions can force non-members to pay dues anyway. As I noted last year: 

The unions contend that these compulsory dues are necessary to overcome the free rider problem (non-union members may benefit from the collectively-bargained wages and benefits without contributing to the union), but plaintiffs in Friedrichs v. California Teachers Association point out that numerous organizations engage in activities (e.g. – lobbying) that benefit members and non-members alike without giving such organizations the right to coerce non-members to pay. That’s especially true when the individuals who supposedly benefit actually disagree with the position of the organization.