Senator Josh Hawley Is Becoming a First-class Demagogue

|The Volokh Conspiracy |

President Trump nominated attorney Michael Bogren for a position as a federal district court judge. As an attorney in private practice, Bogren represented the City of East Lansing in litigation against Country Mill Farms. The city excluded Country Mill from its farmers' market because its owner publicly announced that he would not host a same-sex wedding on his farm, and the city therefore deemed Country Mill to be out of compliance with its public accommodations antidiscrimination statute, which prohibits discrimination based on sexual orientation. Country Mill sued, arguing that East Lansing was violating the religious freedom of the company and its owner.

As VC readers know, I have no sympathy for the ever-expanding scope of public accommodations law, and I generally believe that in disputes like this the government should err on the side of religious freedom. Indeed, I wrote a whole book arguing that civil liberties should be protected against the ever-growing antidiscrimination legal edifice.

Nevertheless, precedent generally favored the city (and indeed it won a motion to dismiss), and Bogren's brief in support of East Lansing's motion to dismiss makes an unremarkable argument: if the government is required to refuse to enforce antidiscrimination laws based on what many see as mainstream, sincere and relatively benign religious beliefs, the government will also have to accommodate discriminatory actions based on sincere religious belief that almost everyone recognizes as noxious, such as the beliefs of the Nation of Islam and the KKK.

Two things should be obvious here. First, that Bogren was acting as an attorney making the best legal argument he can on behalf of his client, which doesn't necessarily represent his personal beliefs. Bogren may very well think that East Lansing should lay off Country Mill Farms and similarly-situated business, and it's unreasonable to think that an attorney always agrees with the position he asserts on behalf of his client. It's not proper to publicly ask an attorney to state that he personally disagrees with an argument made in court on behalf of a client, especially, as in this case, when the litigation is ongoing. Second, the argument Bogren made is the standard legal argument anyone would make in his position, and does not reflect any demonstrated hostility to Country Mill Farms' owners' religious beliefs.

I assume that as an attorney and former law professor, all this was obvious to Senator Hawley as well. Nevertheless, at Bogren's confirmation hearing, Hawley chose to demagogue the issue, accusing Bogren of comparing traditional Catholic beliefs to those of the KKK, and more generally of exhibiting hostility toward Catholicism. There's no excuse for (a) misrepresenting Bogren's arguments; and (b) treating arguments made on behalf of a client in a brief as if they represent the attorney's personal opinion.

You can watch a video of Hawley's appalling performance here, and I've reprinted Bogren's argument on behalf of East Lansing below as well. This is not the first time Hawley has demagogued a judicial nomination, and the trend doesn't bode well.

The argument from Bogren's brief:

There can be no constitutionally sound argument that sincerely held religious
beliefs would permit a secular business to avoid the prohibitions against racial
discrimination or gender discrimination found in Federal, State and local laws. The Bob Jones Univ. decision put such an argument to rest. Similarly, other courts have held the gender anti-discrimination provision of Title VII could be constitutionally enforced against religious entities. E.E.O.C. v. Fremont Christian School, 781 F.2d 1362, 1369 (9th Cir. 1986)("Because the impact on religious belief or practice is minimal and the interest in equal employment opportunities is high, the balance weighs heavily in favor of upholding Fremont Christian's liability under Title VII for its sexually discriminatory health insurance compensation program."); E.E.O.C. v. Tree of Life Christian Sch., 751 F. Supp. 700, 711 (S.D. Ohio 1990)("However, although the application of the Equal Pay Act would burden Tree of Life's freedom to select the manner in which it will bear witness to the belief that the husband is the head of the household, in the Court's view the burden imposed upon defendant's central religious beliefs would be limited. . . . Congress' purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions.").

One of the tenets of the religious group Nation of Islam is: "We believe that
intermarriage or race mixing should be prohibited." www.noi.org/muslim-program There can be doubt that if a member of that faith ran a business similar to the plaintiffs' business, but instead of refusing to accommodate same sex couples (or in addition to), refused to accommodate interracial couples, such a refusal would be subject to the antidiscrimination laws of the Federal, State and local governments. The other side of that discriminatory coin is found on the website of the White Camelia Knights of the KKK, which is "a Texas based KKK organization composed of White Christian Men and Women dedicated to the advancement and protection of the same Christian beliefs that were the foundation of this once great nation." www.wckkk.org/index.html That group states: "The Klan has always taken a strong stance against interracial marriage. What most people don't understand is
it's against our Heavenly Father's law." www.wckkk.org/nature.html Again, an adherent of that particular brand of Christianity who ran a business similar to the plaintiffs' business would not be able to invoke the free exercise clause to avoid the antidiscrimination  provisions of Federal, State and local laws that apply to public accommodations if interracial couples were refused service.

Certain imams of the Islamic faith have opined that women may not drive
automobiles. Shaykh Ibn 'Uthaymeen was asked to explain that ruling. His lengthy
response concluded: "Based on these two principles, the ruling on women driving should be clear, because women driving includes a number of evils . . ."
https://islamqa.info/en/45880 If a practitioner of the Islamic faith who was a follower of that rule operated a business that taught driver's education, he could not refuse to accept a female customer on the basis that doing so would interfere with his right to freely exercise his religion.

None of these propositions are in any way remarkable from a constitutional
standpoint. Thus, the plaintiffs' only response to why the City of East Lansing's
antidiscrimination policy would not fall within this unremarkable constitutional
proposition must be that the subject of the nondiscrimination policy (sexual orientation) is not worthy of the same level of protection as race or gender. Plaintiffs might well believe that – and such a belief might be based on their religion – but those beliefs are certainly no more sincere than the beliefs held by the religious adherents in the prior examples. The plaintiffs' beliefs themselves, or their degree of sincerety, cannot be the deciding factor. Since the Supreme Court has explicitly stated the States (which includes local governments) have the power to enact legislation banning sexual orientation discrimination, Hurley, supra, it is difficult to conceive of a viable rationale that would support plaintiffs' position. In point of fact, there is no rationale that supports plaintiff's position. To the contrary, the courts have utterly rejected any suggestion that sexual orientation is not entitled to the same level of protection as other protected classes:
The Council determined that a person's sexual orientation, like a person's
race and sex, for example, tells nothing of value about his or her attitudes,
characteristics, abilities or limitations. It is a false measure of individual
worth, one unfair and oppressive to the person concerned, one harmful to
others because discrimination inflicts a grave and recurring injury upon
society as a whole. To put an end to this evil, the Council outlawed sexual
orientation discrimination . . . Gay Rights Coal. of Georgetown Univ. Law Ctr. v. Georgetown Univ. supra, 536 A.2d at 32.

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  1. “The Bob Jones Univ. decision put such an argument to rest. ”

    T.S.Eliot: “If we take the widest and wisest view of a Cause, there is no such thing as a Lost Cause because there is no such thing as a Gained Cause. We fight for lost causes because we know that our defeat and dismay may be the preface to our successors’ victory, though that victory itself will be temporary; we fight rather to keep something alive than in the expectation that anything will triumph.

    Court decisions do not “put arguments to rest”. At most, they might legally settle those arguments until overturned. And the losers may certainly anticipate that overturning, if not immediately, then in due time.

    Most especially, losing a court case doesn’t imply the people on the losing side, parties or general population, magically change their minds, about what is right and proper, or even about what is properly “the law”.

    We may indeed hope for, and labor towards, the day the law finally admits that private sector discrimination, however disreputable, is no business of government’s so long as it does not lead to acts which would properly be illegal if no “discrimination” were involved.

    Just as the other side hopes for, and labors towards, a nation where anti-discrimination law finally succeeds in entirely abolishing the sphere of private decisions beyond the law’s reach.

    1. And, crucially, a critical step in victory for either side in this sort of fight, is purging the judiciary of judges who are comfortable with the other side’s reasoning…

      1. If Senator Hawley wants to argue that no attorney who was willing to accept this case because it shows a lack of intense personal commitment to religious liberty is fit to be nominated that would be an honest, non-demagogic argument. Misrepresenting the brief’s argument, and suggesting that an attorney is personally accountable for any specific argument made on behalf of his client, is not.

        1. The idea “that an attorney is personally accountable for any specific argument made on behalf of his client” may be an abomination within the legal community, it is normal reasoning outside it.

          1. And yet there’s that guy at Harvard who has been demoted or moved or whatever for the sin of representing Harvey Weinstein. But presumably somebody has to be found to defend even the scummiest of defendants.

            So the ethics of who you represent and what arguments you put forward seem potentially complicated to me.

            Making a legal argument that has found favor in the courts previously, even if you don’t approve of it, doesn’t seem to me to be a particularly wicked thing. Much more inappropriate, IMHO, is advancing your client’s version of some facts that you know to be untrue, or which you have concocted with him.

            1. I addressed myself to arguments, not defendants. Harvey Weinstein is as entitled to a defense as anybody else, but only a reputable defense, not one based on objectionable reasoning.

              1. I addressed myself to arguments, not defendants. Harvey Weinstein is as entitled to a defense as anybody else, but only a reputable defense, not one based on objectionable reasoning.

                It’s hard to figure out what Brett is saying here, since he isn’t a lawyer, but as best as one can parse this, it’s not correct. Weinstein is entitled to any and every defense that has a factual foundation and complies with the law, whether “objectionable” to some or not.

                1. I think he wants to deplatform but for lawyers?

                2. Hm, that’s an interesting assertion. Ironically, while I’d agree that ought to be the case legally, and regard the failure of it to be true in our courts as a violation of the 6th and 7th amendment, the judiciary certainly wouldn’t agree with that, routinely silencing any defendant or lawyer who tries to advance a jury nulification defense.

                  But we’re not talking about what a person’s lawyer ought to be permitted to say. We’re talking about how a legislator voting on that lawyer’s elevation to the judiciary might reasonably view such utterances.

                  Freedom of speech may deny you legal consequences for almost all utterances, it has never denied you reputational consequences, or what they entail.

                3. Nieporent : Weinstein is entitled to any and every defense that has a factual foundation and complies with the law, whether “objectionable” to some or not.

                  I think we need to unpack “entitled” here. For Weinstein to be so entitled, somebody else has to be obliged to deliver the entitlement.

                  So it’s one thing to say that a lawyer who chooses to represent Weinstein should be allowed to advance any and every defense that has a factual foundation and complies with the law – but quite another to say that a lawyer who chooses to represent Weinstein should be required to do this, including advancing arguments that are IHHO legally wrong (even though current precedent might support it) or which are IHHO immoral.

                  No doubt local Bar ethics has something to say on this. But as far as I am concerned, a lawyer should be allowed to eschew tactics and arguments he disapproves of, even if they might help his client (so long as the client is told this when he engages the lawyer.) And to the extent the lawyer has some discretion about these matters, it’s not unreasonable to ask him to justify himself.

                  I really don’t think ths presents any major practical problem. We have Avenettis aplenty. A client wanting a lawyer to put a dodgy or immoral legal argument or even to assist in the concoction or destruction of evidence is not far to seek. No need for the honest ones to be required to get into the muck.

                  1. ” as far as I am concerned, a lawyer should be allowed to eschew tactics and arguments he disapproves of, even if they might help his client”

                    Like when his conviction is overturned for ineffective assistance of counsel.

                  2. But as far as I am concerned, a lawyer should be allowed to eschew tactics and arguments he disapproves of, even if they might help his client

                    One is allowed to believe whatever one wishes. I think there ought to be the death penalty for rooting for the Yankees. But one needs to recognize that one’s personal beliefs do not necessarily accurately state the law.

                    1. Indeed. And it’s a very incompetent lawyer who mistakes an opinion of what the law ought to be, for an opinion of what the law is. Though that notion does appear to be at the heart of some theories of legal interpretation.

                    2. I think there ought to be the death penalty for rooting for the Yankees.

                      Breaking news: Mouse wants death penalty for rattlesnakes.

          2. “The idea “that an attorney is personally accountable for any specific argument made on behalf of his client” may be an abomination within the legal community, it is normal reasoning outside it.”

            Didn’t you mean “The idea “that an attorney is personally accountable for any specific argument made on behalf of his client” may be an abomination within the legal community, it is normal reasoning outside it, among stupid people.” ?

            1. Hawley is a lawyer, a law professor, and a former Missouri Attorney General. Unless he was incompetent at all three jobs, he understands the legal principle here, and he lied about it.

              There is one thing I find surprising about this. Ann Arbor is now, and has been for many years, dominated by extreme leftists, who have attempted to impose an ideological purity test on everyone doing business with the city. Did Trump make a mistake, or is Bogren so nonpolitical that he can pass opposite purity tests?

        2. He did not misrepresent the brief’s argument, he correct described it. Bogren argued that, as an ethical, legal, and moral matter you can’t differentiate between KKK members not wanting to rent their place to a mixed skin color marriage, and Catholics not wanting to rent their place to a same sex “marriage” that violates their scienrely held religious beliefs.

          As you know, Bogren stated, under oath, that he personally agreed with that argument.

          Senator Hawley stated, correctly, that any person who believes that is not qualified to have any power in our society.

          Senator Hawley is right, Bogren and you are wrong. And the only lying demagogue here is you

          1. Bogren argued that, as an ethical, legal, and moral matter you can’t differentiate between KKK members not wanting to rent their place to a mixed skin color marriage, and Catholics not wanting to rent their place to a same sex “marriage” that violates their scienrely held religious beliefs.

            Incorrect.

            Bogren’s argument is that there would be no principled legal basis to distinguish between the two kinds of religious obligations. (This argument is, it seems to me, clearly correct.) The argument depends on recognizing that the beliefs are not ethically or morally equivalent – and thus that recognizing the comparatively benign accommodations sought by the Catholic business owner would still lead to negative consequences.

            As Ed Whelan (you know, that crazy anti-Catholic bigot) observed, noting that a legal outcome would logically require another bad outcome isn’t “equating” the two things. I have to think that Hawley is smart enough to understand that, and it’s a shame he’s decided to develop his political career by exploiting those who aren’t.

            1. “Bogren’s argument is that there would be no principled legal basis to distinguish between the two kinds of religious obligations.”

              You certainly could argue (From an originalist standpoint.) that the 14th amendment was understood to apply to race, and was so far from being understood to apply to sexual orientation that if the idea had arisen it would have been a deal breaker. Not that that argument would get you far in today’s judicial climate, alas.

              But I tend to agree that there isn’t a principled legal basis for distinguishing the two sorts of religious obligations, since the 14th amendment doesn’t extend to private actions anyway. (“No State shall… nor shall any State…”) And so is basically irrelevant to the analysis in any case.

              There isn’t any constitutional basis for outlawing private discrimination, and there IS a constitutional basis for free exercise, so free exercise should win every time.

              1. Wouldn’t the Tenth Amendment be the constitutional basis for East Lansing outlawing private-sector discrimination?

                  1. Not sure why you’re facepalming; The 10th amendment is the constitutional basis for ALL state powers, ultimately, under the Constitution. State constitutions just allocate those potential powers between the state and the people.

                    1. Maybe he’s facepalming because what you’re saying is wrong. The 10th amendment is not a grant of power, and states do not derive their authority from the federal constitution in the first place.

                    2. Not originally, no. But remember that the federal Constitution, on it’s own terms, is “the supreme law of the land”, so, under that Constitution the states do indeed post-ratification derive their powers from the 10th, in the sense that it sets the scope of the powers available to the states. While the state constitutions then allocate that power the 10th amendment affords them.

                1. Prior to ratification of the 14th amendment, sure. Now that the 14th amendment subjects ALL levels of government, not just the federal, to the bill of rights? Not so much. That “nor prohibited by it to the States” language kicks in.

                  1. Wouldn’t the Tenth Amendment be the constitutional basis for facially upholding East Lansing’s anti-discrimination law, and the only pertinent question is whether specific applications violate other sections of the Constitution?

                    Assuming that the First Amendment is violated by this application of East Lansing’s anti-discrimination law, we are back to the question of whether there would be a principled legal basis to distinguish between the two kinds of religious obligations (not wanting to serve the marriage of a same-sex couple versus an interracial couple).

                    1. Well, yes, exactly. Not that the federal judiciary is at all keen on citing the 10th amendment.

                      And I would say, no, there isn’t any such principled legal basis.

                  2. The 1A wouldn’t prohibit an anti-discrimination statute.

                    1. It would prohibit an anti-discrimination statute that conflicted with freedom of speech, or freedom of the press, or freedom of association, or the free exercise of religion. Which such statutes quite easily can do.

                      For instance, Dale v Boy Scouts was decided in favor of the Boy Scouts on a freedom of association basis, overturning application of a state anti-discrimination law.

                      The problem is that the courts have taken a rather hostile turn against free exercise.

                    2. @Brett,

                      “The problem is that the courts have taken a rather hostile turn against free exercise.”

                      What do you mean by that? When did this turn occur? Employment Division v. Smith came out before Boy Scouts.

                    3. It’s been getting worse and worse; I expect that if Boy Scouts v Dale were being heard today the Boy Scouts would have lost.

                      Employment Division v Smith WAS a big deal, though; It’s the reason RFRA was passed, and then the Court struck down part of RFRA just to underscore they were serious about abandoning the Sherbert test.

                      I think at that time you might have even managed an amendment to reverse Employment division. Not today, of course; The Republicans might support it, but the Democrats are seriously anti-religion these days.

                    4. @Brett,

                      You will not get a constitutional amendment to reinstate Sherbert because it’s an unworkable holding. State are not going to be required to pay unemployment benefits to any person fired because of their refusal to work during prayer. Even if you could get an amendment, it would quickly be dialed back.

              2. ” free exercise should win every time.”

                EVERY time a person says they did something because of their religion, they should get a pass from following laws that would otherwise apply?

                1. I though it was fairly explicit that I think free exercise (Or freedom of association.) should always prevail over the demand that people not engage in discrimination.

                  Because free exercise, or freedom of association, are actual constitutional rights. While non-discrimination as a constitutional value is imposed only on the state, not individuals. It’s right there in the language of the 14th amendment: “No State shall… nor shall any State…”

                  There isn’t any constitutional basis for a right not to be discriminated against by private citizens. Thus this supposed right must fall whenever it conflicts with an actual constitutional right.

                  1. If this application of East Lansing’s anti-discrimination law is generally-applicable an neutral, Employment Division v. Smith forecloses the argument that the Free Exercise Clause was violated in this case.

                    1. The courts are somewhat hostile to freedom of religion as an actual constraint on government. If the rights enumerated in the bill of rights can’t get in the way of enforcement of generally applicable laws, what use are they?

                    2. You are begging the question that there is a Free Exercise right to disobey a generally-applicable law.

                    3. No begging, let me state explicitly that there IS such a right, and at one time the judiciary understood this quite clearly, as demonstrated by the Sherbert test. It wasn’t enough that a law be of general application. It had to be narrowly tailored to achieve a compelling interest.

                      It wasn’t until Employment Division v Smith that the Supreme court overturned that former understanding of free exercise, rendering the free exercise guarantee basically hollow.

              3. And how do you figure people exercise freely with private discrimination?

                1. Look, racial discrimination isn’t part of MY religion, but neither is chewing on psychedelic mushrooms, or handling snakes, so what of it? It would be a very unfree world where people only had a right to do things *I* want to do. Pretty boring world, too, I expect.

                  Being a generally applicable law wouldn’t save a law that infringed on freedom of speech, why should free exercise be a second class part of the 1st amendment? Just because judges like freedom of speech, and aren’t terribly keen about religion, I think. So the Sherbert test continues to be used for freedom of speech, and is jettisoned so far as freedom of religion is concerned.

                  As far as I’m concerned, religion shouldn’t NEED special protection, because no law should ever be adopted that wasn’t narrowly tailored to achieve a compelling interest. But that’s not the country we live in, alas.

                  1. Taken to its logical conclusion, we aren’t just talking about a random business that doesn’t do what I want. We’re talking about codifying segregation again by allowing entire regions (and potentially the entire country) to be inaccessible to certain groups.

                    1. Oh, come off it. For starters, non-discrimination still applies to government at all levels, and the roads are governmental, so what regions are you talking about, the parts you can’t drive into that are entirely privately owned?

                      For another thing, if that many people actually wanted discrimination, the democratic process would deliver it as official policy. Even the Constitution could be amended.

                      The only reason private discrimination is threatened is that it is largely unpopular. Bigots are an ineffectual minority today!

                    2. It’s kind of ridiculous that you even think such a society should exist. Who gives a fuck if you can drive almost anywhere? You won’t be able to buy anything. All services will be denied under the guise of religious freedom.

                      Lack of political activism today doesn’t mean lack of popular support. Lots of popular ideas aren’t tenable because people can’t properly assess popular support.

                    3. What’s ridiculous is that you think that if the government couldn’t ban private discrimination we’d be right back in the depths of Jim Crow, when the governments going overboard in banning discrimination are democratically elected in the first place.

                      People who want to discriminate against blacks and homosexuals are a largely powerless minority today. Even if their rights of association were restored, you’d hardly notice the difference.

                      Remember, the people who sued Elaine photography went looking for somebody who’d refuse to do the job. They didn’t pick Elaine until they had confirmed Elaine would refuse the work!

                      You have to go out of your way to find people who’d exercise this right, if it was restored.

                    4. I hope you realize this is the same sort of logic people use to strip us of our Constitutional rights. “You don’t need 2A because the government isn’t tyrannical today.”

                      On what basis do you presume that private discrimination could never become popular again? And why does lack of popularity justify restricting the freedoms of those discriminated against but not justify restricting other unpopular rights?

                    5. awildseaking: If private discrimination became popular again, the laws against it would be repealed. These are laws, not enshrined in the Constitution, but passed by a mere majority, and can be overturned by a mere majority.

                      Furthermore, even the ban on _government_ racial discrimination in the 14th Amendment wasn’t enforced between 1877 and 1956, when the Supreme Court finally found their courage – after sensing a political change in the more populous parts of the USA. This government discrimination included not only “separate but [not really] equal” public schools and drinking fountains, but Jim Crow laws that forced _private_ discrimination upon railroads, hotels, and restaurants in many states. E.g., in Plessy v. Ferguson, the railroad involved entered a legal brief against Jim Crow – they did not want to have to run separate cars for blacks and whites, nor to turn away customers because one car was full while the other one was nearly empty.

                      The 1964 Civil Rights Act was a majority (northern states) forcing their will upon a minority (southern states). It was allowed, but not required, by the 14th Amendment. A large part of the reason it was necessary was to reverse the pattern of discrimination in private businesses offering public accommodations that had been _required_ by law – with the Supreme Court allowing it.

                    6. People who want to discriminate against blacks and homosexuals are a largely powerless minority today.

                      I don’t think so.

                    7. markm23: Popularly supported private discrimination would cause a massive Constitutional crisis. America is relatively private and the idea that people would live in a country where they are only accommodated publicly by very unwilling and blatantly racist people is absurd. You wouldn’t be able to live in such a society and fleeing would be your only option. You’re playing right into the white nationalist agenda because this is how they go about making ethnic cleansing palatable without outright culling problematic populations.

                      Any society that permits private discrimination is incapable of enshrining Constitutional protections for discriminated populations. I thought “separate but equal” was done away with decades ago but apparently someone didn’t get the memo.

                  2. “Look, racial discrimination isn’t part of MY religion, but neither is chewing on psychedelic mushrooms, or handling snakes, so what of it? It would be a very unfree world where people only had a right to do things *I* want to do. Pretty boring world, too, I expect”

                    Endorsing the notion that anyone can get out of any law by saying “but my religion!” won’t lead to more freedom. It will lead to considerably less.

          2. Bogren argued that, as an ethical, legal, and moral matter you can’t differentiate between KKK members not wanting to rent their place to a mixed skin color marriage, and Catholics not wanting to rent their place to a same sex “marriage” that violates their scienrely held religious beliefs.

            Where did he refer to ethical or moral matters? As a legal matter, it seems to me that Bogren is clearly right. As an ethical and moral matter, I think he’s right on this specific issue as well.

            The member of the KKK or the Nation of Islam may hold his religious views just as sincerely as a devout Catholic. In neither case do their beliefs grant them a blanket exemption from laws they don’t like.

            1. Bogren continued to dig, arguing that he was “trying to make a point about what the next step would be and how one would not be able to have to draw a principled distinction.”

              A “principled distinction” is an ethical and moral one, not just a legal one.

              Further, outside of court Bogran said the people were discriminators who should not be allowed participate in the Farmer’s Market.

              That’s his personal ethical and moral position, not a legal one.

              1. A “principled distinction” is an ethical and moral one, not just a legal one.

                Ah. So now we know that it’s Greg J who’s the dishonest one. He falsely claimed that Bogren said something that he didn’t say.

    2. Bogren is being considered for a position as a court of appeals judge. In that capacity, a Supreme Court decision does put the matter to rest, until the Supreme Court gives different directions.

      Now, maybe Hawley thinks that circuit court judges should ignore what the Supreme Court says, and that judges who will follow Supreme Court decisions Hawley disagrees with shouldn’t be confirmed. But if that’s his position, he should say so honestly and argue his position, not take advantage of the ignorance of some of the populace by advancing disingenuous positions that he can’t possibly believe.

      1. He is nominated for a district court.

        1. You are correct — which if anything makes my point stronger.

    3. We may indeed hope for, and labor towards, the day the law finally admits that private sector discrimination, however disreputable, is no business of government’s so long as it does not lead to acts which would properly be illegal if no “discrimination” were involved.

      You may hope and labor for that day, Brett, but what you want is for the law to “decide,” not “admit,” that your preferences should be enacted. You are not automatically right, because you are Brett Bellmore.

      Just as the other side hopes for, and labors towards, a nation where anti-discrimination law finally succeeds in entirely abolishing the sphere of private decisions beyond the law’s reach.

      Again, and again, and again, you ascribe the worst to those who disagree with you. It is perfectly possible to think that discrimination in public accommodations should be illegal, without wanting the government to take over all private decisions.

      Why can’t you understand that? Why do you think you know what your opponents’ motivations, or ideas about matters not being discussed, are?

      1. For instance, from this perspective it was perfectly predictable that Obergefell would lead to bakers and florists and whatnot being persecuted if they didn’t want to be involved in SSM. And, sure enough, they did.

        1. If you don’t want to bake cakes in exchange for money, perhaps “baker” isn’t the job for you.

          1. Perhaps you want to be a baker, AND a free man, at the same time?

            1. Perhaps the people being discriminated against in private society want to be free men too?

              1. They are: Compelling somebody else to work for you isn’t part of being a free man. Hasn’t been at least since the 13th amendment was ratified.

                1. I think you can imagine a circumstance where all of society decides to privately discriminate, resulting in exclusion zones for every category (and god forbid their intersections), extreme hostility, forced migration, and nothing remotely resembling a country.

                  1. Of course you can imagine such a circumstance. You can imagine pigs flying and thunderstorms raining pink lemonade.

                    Explain how you get such a wide consensus in favor of discrimination AND the law still prohibiting it.

                    1. 2A for starters. Some standards require more than a simple majority. It’s sort of relevant since we’re talking about a supposedly Constitutional right to discriminate.

                    2. No need to imagine.

                      Circumstances in which a large majority of the more
                      numerous, wealthier, and more powerful ethnic group preferred to discriminate in any number of ways against their weaker neighbors are hardly unheard of.

                    3. I think he was saying a situation where the majority is still limited by something. If the US were racist enough to favor discrimination, it most likely would have the popular support to overturn any laws impeding discrimination.

                    4. “If the US were racist enough to favor discrimination, it most likely would have the popular support to overturn any laws impeding discrimination.”

                      Yes, that’s my point.

                      Some people love imagining that the US is seething with barely restrained racial prejudice, that would erupt in a restoration of Jim Crow if given the slightest toe hold. This is clearly delusional. I think they’re just envious of the Civil Rights marchers, are wishing they had a similar evil to fight.

                    5. It’s not that prejudice would erupt. It’s that enabling a legal mechanism for discrimination creates the potential for it in the future, just as removing 2A (or most of the amendments) would create the conditions for tyranny even if our current government has no desire to enforce curfews or suppress speech.

                    6. “If the US were racist enough to favor discrimination, it most likely would have the popular support to overturn any laws impeding discrimination.”

                      Yes, that’s my point.

                      True but not really relevant.

                      Absent civil rights legislation you don’t need a nationwide racist majority to create lots of problems for minorities. A local, statewide, or regional majority will do the trick. That’s a lot of what motivated the 1964 CRA, after all.

                    7. “Explain how you get such a wide consensus in favor of discrimination AND the law still prohibiting it.”

                      The way the R’s imagined there was widespread support for repeal of the ACA, but then couldn’t actually pass a vote to repeal it?

                  2. Why would you need to “imagine”?

                    Mormons moved out of the south because of violent religious discrimination (which they then inflicted on folks moving into Utah).

                    Muslims today continue to have a hard time building mosques because their Christian neighbors are assholes.

                    “White Citizen Councils” were a real thing, restricting economic freedom of black people through “Free Association”.

                    And so-on.

                    You don’t have to “imagine”. You just need to open a history book.

                    1. That’s right, you need to open a history book, rather than a newspaper.

                    2. You’re still making a pretty hefty assertion that such discrimination could never occur again. Let’s keep in mind that America is (relatively) the most free country in the world, has only been so for the past ~50 years, is not as free as it should be, is becoming less free, is not convincing other nations to embrace freedom, and we’re fighting >4000 years of recorded human history of authoritarian rule.

                    3. “Muslims today continue to have a hard time building mosques because their Christian neighbors are assholes.”

                      Well, also because some of their Muslim neighbors are ALSO assholes. Nobody has a patent on being assholes to people because they pray different, and there’s plenty of assholes in every religion (and even (gasp!) those who have no religion.)

                2. “Compelling somebody else to work for you isn’t part of being a free man.”

                  Where in this hypothetical are people being drafted into baking?

            2. “Perhaps you want to be a baker, AND a free man, at the same time?”

              If baking offends your freedom, and not baking offends your freedom, at the same time, freedom isn’t for you.

        2. For instance, from this perspective it was perfectly predictable that Obergefell would lead to bakers and florists and whatnot being persecuted if they didn’t want to be involved in SSM.

          Elane Photography got started in 2005, Masterpiece Cakeshop in 2012, Arlene’s Flowers in 2013, Sweet Cakes by Melissa in 2013.

          And Obergefel v. Hodges was decided in 2015.

          So no. Obergefel v. Hodges didn’t lead to any of those.

          1. Indeed, one of the ironies of the cases you cite (well, I don’t recall the Arlene’s Flowers case, but the other three) is that the states were trying to punish private citizens from discriminating against gay marriage while the states themselves did not recognize gay marriage.

            1. Yeah, it’s almost like marriage is a red herring in these cases or something, used to distract from the actual point (which is non-discrimination law).

            2. ” the states were trying to punish private citizens from discriminating against gay marriage while the states themselves did not recognize gay marriage.”

              No, the states were punishing private citizens from discriminating against gay people while the states did not recognize gay marriage. Not quite the same thing.
              (Note, of course, that gay people who obtained a religious marriage from their religious organization were free to do so, and tell people about it quite openly, even if the states chose not to recognize them.)

  2. While listening to the oral arguments for Lamone v. Benisek and Rucho v. Common Cause I heard Justice Kagan say, “Surely you don’t think the judiciary is not allowed to review [gerrymandering] merely because The Constitution says so? There might be racial discrimination…”

    I take that as meaning that she considers discrimination as the ultimate trump card beating any and every other argument including The Constitution and the Bill of Rights.

    1. Have you ever heard of a federal nexus? Attaining jurisdiction is not quite an ultimate trump card.

    2. Where? I took a quick look at the transcripts (including the index cites for “discrimination”) and didn’t see anything similar.

    3. Yes. Where?

      Chapter and verse, please.

      1. I must confess IANAL, so I was sloppy. I had the wrong case and the wrong justice.

        The case was Roucho v Common Cause. The justice was Sotomayor, page 4, lines 12-16, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/18-422_5hd5.pdf.
        “It can’t be that simply because the
        Constitution says that a particular act is in
        the hands of one — one branch of government,
        that that deprives the courts of reviewing
        whether that action is constitutional or not. “

        1. I think it’s unlikely that Sotomayor is going to come out on partisan gerrymandering the way I think is correct. But the actual question is very different from your paraphrase.

        2. It can’t be that simply because the
          Constitution says that a particular act is in
          the hands of one — one branch of government,
          that that deprives the courts of reviewing
          whether that action is constitutional or not.

          The constitution says the Senate has the sole power to try impeachments. Can Sotomayor possibly think in light of that that the supreme court is empowered to review what happens at such a trial? I suggest “sole power” is necessarily constitution-speak to assert the empowered branch of government, or empowered government officer, cannot be interfered with by anyone.

          1. She could reasonably think that. Just because the Senate has the sole power to try impeachments doesn’t mean that, as soon as they start doing so, they’re free of all constitutional constraints in their actions. They can’t, for instance, threaten an uncooperative witness with a bill of attainder.

            That doesn’t, of course, mean that the Supreme court could overturn a conviction, or terminate the trial. But there certainly could be aspects of the way it was conducted that would properly be subject to review.

            1. Brett, the senate has no power to pass a bill of attainder. The house and president would have to concur. That makes it not a “sole power” action, and thus outside the scope of this discussion. Got another example?

              To make it harder for you, let me suggest that each of the “sole power” delegations to a political branch is an example of the sovereign People choosing to put sovereign power into the hands of government, for direct exercise in the name of the People. Doing that has the effect to put those particular exercises beyond the reach of checks and balances (a truism with “sole power”), and leaving them only under direct political control, as exercised by the People. To accomplish that, checks and balances had to be suspended in specific instances, lest the exercise of the People’s sovereign power be checked by the government—a contradiction to be avoided in a system which insists government must always be subordinate to, not superior to, the sovereign.

              What you see then, with the “sole power” delegations in the constitution, is the mechanism by which America’s sovereign built into the constitution its own abiding control of the government, to be exercised at pleasure, and without constraint—as sovereign power always must be, lest it cease to be sovereign, and surrender the title of sovereign to whatever power can constrain it. That continuing sovereign control must always be there, lest constraints on government power fail, or the rights of the people as subjects be trodden down by government.

              Thus, to suppose the court can interfere with a “sole power” delegation is to turn the American system of government upside down, and make the court sovereign instead. That would be nonsense. It is the People’s court. The People acting in their joint capacity as sovereign are never the court’s subjects.

              I have little doubt you will think that must all be nonsense. But you will not be able to argue the point coherently. Like almost everyone today—and like none among the founders—you were probably educated to suppose the constitution, as if descended from heaven itself, sits magically atop our system of government. Perhaps you also suppose checks and balance must always rule, because your civics teacher said so—never noticing herself that sole power designations put the sovereign People in continuing charge, via the political branches.

              Checks and balances were no hindrances to the People when they decreed the constitution. They cannot be made hindrances to the People now, as they continue the exercise of their sovereignty.

          2. ” Can Sotomayor possibly think in light of that that the supreme court is empowered to review what happens at such a trial?”

            I do. If, say, there are allegations that the Constitutional requirements were not met. The Constitution vests supreme judicial power in the Supreme Court.

            1. The Constitution vests supreme judicial power in the Supreme Court.

              That isn’t quite what Article 3 says, is it? Instead it says:

              The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

              That is subtly different than “the supreme judicial power,” and as it happens, the subtle distinction matters. It is the distinction between a supreme court and a supreme power.

              Note that elsewhere, in Article II, the President is vested with the sole power to pardon. With regard to criminal guilt and punishment, the pardon power stands at least closer to the “supreme judicial power,” because it amounts to a veto power over even the supreme court. But it is only closer, and not yet the true statement of the supreme judicial power.

              The pardon power is also subject to constraint, from the political process—a process so intimidating to presidents that they tend to withhold use of the pardon power until they are ready to step down. By noting that political constraint, we arrive finally at the accurate statement: that the supreme judicial power—as likewise the supreme political power, and the supreme administrative power—lies with the sovereign People.

              That is no formalistic quibble. Those sovereign powers are not infrequently exercised by the People. They do so by means of their political control of the conduct of office holders, who are vested collectively or individually by various of the constitution’s, “sole power,” clauses. Those, by forbidding the operation of checks and balances, achieve for the normally-more-constrained officers and divisions of government, enhanced powers. Within specified subject areas defined by the constitution, those enhanced powers become commensurate with the People’s absolute power. Thus it is that the People can step into the day-to-day affairs of policy, politics, and justice, to administer sovereign correctives in instances where the government has acted contrary to the sovereign will, or exceeded government’s prescribed bounds—including instances where the supreme court has done so.

              Those are the functions of the pardon power, the impeachment power, and the power to try impeachments. It is the weighty import of those functions which dictates that their exercise be extraordinarily empowered, beyond the normal powers of government officers and divisions of government. That is what the “sole power” clauses in the constitution accomplish. That is why Sotomayor is mistaken to suppose that there is any role for the supreme court in reviewing a trial of impeachment.

              1. “That is subtly different than “the supreme judicial power,” and as it happens, the subtle distinction matters. It is the distinction between a supreme court and a supreme power.”

                Alas, the Constitution fails to name a “supreme power” so we have to work without one.

              2. “The pardon power is also subject to constraint, from the political process—a process so intimidating to presidents that they tend to withhold use of the pardon power until they are ready to step down”

                You might want to research both of your claims, since they are both false.

  3. A politician being dishonest, hypocritical, and idiotic! No, it can’t be! Better stop the presses!

    1. It’s as well to remember that, on the whole, Republican politicians are pretty unpleasant and untrustworthy people. The only reason that can usually be found for voting for them is that the alternative is likely to be worse.

      1. Good one!

      2. Personally, I find that politicians in general, regardless of party, are pretty unpleasant and untrustworthy people (with the possible exception of libertarians, who can be very pleasant and honest, and hence almost never elected). My only excuse for voting for Republicans over Democrats is that they are SLIGHTLY better on economic liberty, but both parties are in the business of creating excuses for the exercise of ever greater government power, which both parties then proceed to misuse and abuse.

        1. Economic liberty is one reason. Another is that, while the right tends towards authoritarianism, the left tends towards totalitarianism.

          Finally, the left’s obsession with gun control suggests that they’ve got some things planned that they know a populace capable of defending itself would never agree to.

          1. “Finally, the left’s obsession with gun control suggests that they’ve got some things planned that they know a populace capable of defending itself would never agree to.”

            Either that, or they’re tired of news coverage of shot-up dead kids. It’s definitely one of those two things.

    2. No, in this case it’s a reason columnist being “dishonest, hypocritical, and idiotic”.

      Sadly, it’s not a shock.

      Senator Hawley asked Bogren if he personally believed the argument he made for East Lansing, and Bogren said yes.

      If that doesn’t make Bogren and his arguments fair game, it’s because you believe that lawyers are a special class of people, entitled to rights the rest of us don’t get.

      No sale.

      1. One could believe the argument but not support the outcome.

  4. Of all the fascinating legal issues to blog about, we get another post about Senator Josh Hawley.

    *Yawn*

    1. Ask for a refund from Prof. Volokh.

  5. First, that Bogren was acting as an attorney making the best legal argument he can on behalf of his client, which doesn’t necessarily represent his personal beliefs. Bogren may very well think that East Lansing should lay off Country Mill Farms and similarly-situated business, and it’s unreasonable to think that an attorney always agrees with the position he asserts on behalf of his client. It’s not proper to publicly ask an attorney to state that he personally disagrees with an argument made in court on behalf of a client.

    You are not just wrong here, you are flagrantly dishonest and wrong here.

    Your first point says “hey, he’s just their attorney, he might not actually believe it.” But your second point says “you can not ethically ask him if he believes what he argued there.”

    Your second point is garbage, because makes it impossible to actually judge a nominee.

    Senator Hawley did the right thing, he asked Bogren if Bogren personally agreed with the argument he made for East Lansing. Bogren answered that yes, he did believe it.

    So your first point is clearly false. And, since I assume you actually watched the questioning, or at least read the transcript, you know that. So you are a liar.

    Which is far worse than being a “demagogue”.

    Senator Hawley is doing the right thing, and Bogren should not be confirmed

    1. I haven’t seen the transcript of the exchange – can you link it? If not, can you quote he exchange where Bogren “answered that yes, he did believe it”?

    2. Senator Hawley did the right thing, he asked Bogren if Bogren personally agreed with the argument he made for East Lansing. Bogren answered that yes, he did believe it.

      So your first point is clearly false. And, since I assume you actually watched the questioning, or at least read the transcript, you know that. So you are a liar.

      I couldn’t find a transcript readily available, and I’m not going to watch video, but I don’t believe you.

      As Prof. Bernstein correctly noted, it would be improper to ask an attorney whether he “personally believed” an argument on behalf of a client, especially since the representation is ongoing.

      But the question is dumb in any case, because how could any competent attorney not agree that as a legal matter the government can’t distinguish between the religious beliefs of different religious groups? A person is free as a moral matter to say that the Catholic Church’s position on gay marriage is good and the NoI’s position on interracial marriage is bad — but as a legal issue, there’s no difference.

      1. As Prof. Bernstein correctly noted, it would be improper to ask an attorney whether he “personally believed” an argument on behalf of a client, especially since the representation is ongoing.

        Why?

        It is accepted by the legal profession that attorneys make arguments they don’t believe in, in order to advance a client’s interests. Given that, it causes no harm to teh legal case for an attorney to state that, in this case, he’s acting on the client’s beliefs, not his own.

        Besides: Nothing forced Bogren to take this case. If he’s an employee of the city, then he’s sworn an oath to protect and defend the US Constitution agains all enemies, foreign and domestic. So if he thought the argument was wrong, and that East Lansing was violating the 1st Amendment rights of the Catholics, he’d have a duty NOT to take the case.

        If he’s in private practice, then he would have an even easier time taking a pass.

        And here’s a rule: If you argue that anyone should be forced to participate in a same sex marriage, in any way, then you are an evil, intolerant bigot, and every Republican has a moral duty to fight against you ever getting any power.

        1. If you argue that anyone should be forced to participate in a same sex marriage, in any way, then you are an evil, intolerant bigot, and every Republican has a moral duty to fight against you ever getting any power.

          I very strongly oppose requiring anyone to enter a same-sex marriage. Providing facilities for a wedding ceremony is a different matter.

          1. I’m kind of curious about the limiting principle here. Apparently the government can prohibit (fill in the blank) discrimination in the case of commerce, but not in the case of, say, dating.

            Is it a matter of money changing hands? Would Country Mill Farms be safe if they just permitted weddings on their farm for free, rather than charging for it?

            No, it can’t be money changing hands, because people are generally free to refuse to buy on discriminatory basis, though not to refuse to sell. Unless you’re selling your labor, in which case it’s the buying that is bound, but not the selling.

            Unless you’re selling your labor as a business, in which case the legal obligation of non-discrimination flips again; The ‘gay’ couple are free to discriminate against straight florists, after all.

            I find it all rather confusing, so I’d like to know what you regard as the unifying principle here, that divides the cases where (fill in the blank) discrimination is a right, from the cases where it can be prohibited. Is there one, or is it all as random as it appears?

            1. “I find it all rather confusing”

              Let’s straighten it out, then.
              If you are a baker, you bake things, in exchange for money. If baking things in exchange for money offends your religion, you shouldn’t be working as a baker.

              1. That seems to fall rather short of “a unifying principle”, quite aside from ignoring that bakers are human beings first, and only secondarily bakers.

                1. Baking is behavior.

              2. So should female Muslim prostitutes be required to commit lesbian acts if they don’t want to, so long as somebody’s paying?

                1. Nevada, which has both legal prostitution and non-discrimination laws, says no.

              3. So it’s ok to force a baker to bake a cake with a swastika on it, then? Or a hammer and sickle? Or a Republican elephant? All because money exchanges hands?

                I suppose you can make the argument that if baking things in exchange for money offends your conscience, you shouldn’t be a baker.

                At what point can the baker refuse service because the baker refuses to endorse the requested message? Does discrimination only kick in when it offends religious sensibilities?

                1. “I suppose you can make the argument that if baking things in exchange for money offends your conscience, you shouldn’t be a baker.”

                  Yeah, that sounds about right.

                  “At what point can the baker refuse service because the baker refuses to endorse the requested message?”

                  Hellafino. Why are bakers sending messages in cakes? Besides “here’s a cake”, I mean.

                  1. Why do bakers send messages in cakes? To celebrate marriages and birthdays, and to celebrate all sorts of other things.

                    We’ve been doing it for years. If the baker didn’t really believe he was sending a message via his cake, do you really think he’d oppose baking and decorating it?

            2. The Constitutionally protected right is limited to intimate and expressive associations. So perhaps the state could outlaw discrimination by customers in how they choose service providers in addition to outlawing discrimination by service providers in how the choose customers.

              1. The Constitutionally protected right doesn’t say diddly about “intimate and expressive associations”.

                1. I am referring to precedent. You are of course free to advocate for the reversal of Heart of Atlanta.

                  1. Then you should have said, “precedent concerning the Constitutionally protected right…” We have to be able to recognize when precedent and the Constitution differ.

                2. It doesn’t say anything about a right to association at all, if you want to get technical.

                  1. Details.

            3. I’d say it’s an issue of public accommodation.

              I’m free to invite who I want to dinner. A restaurant open to the public isn’t.

        2. If you argue that anyone should be forced to participate in a same sex marriage, in any way, then you are an evil, intolerant bigot, and every Republican has a moral duty to fight against you ever getting any power

          Bogren isn’t arguing that anyone should be forced to offer their marriage services to same-sex couples. He is arguing the majority has the legal authority to require such services be offered to same-sex couples if they are voluntarily offered to opposite-sex couples.

          1. I find this distinction a bit too clever.

            “If you decide to do X for a living, you must submit to this regulation. If you don’t like it, do something else for a living!) runs into the fact that the same people imposing the regulation on X can impose it on Y and Z, too.

            And you’ve got to do SOMETHING for a living.

            At some point you have to challenge the very idea that the government is entitled to force you to relinquish basic civil liberties (Like freedom of association.) as a condition of doing business.

            1. Actually isn’t that EXACTLY what a government is supposed to do?

              Impose conditions on people, “. . . in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare. . . .”

              1. Within very stringent limits. The goal was not to create some sort of “Everything that’s not mandatory is forbidden” dystopia.

                1. If you find our country so dystopian, why are you still here?

                  1. Obviously because I don’t think people like Apedad have finished making it a dystopia yet.

            2. “At some point you have to challenge the very idea that the government is entitled to force you to relinquish basic civil liberties (Like freedom of association.) as a condition of doing business.”

              No you don’t. Government is just other people. If you want a society where the rights of one person doesn’t impinge the rights of another person, you want a society of one person.

  6. I think it is germane for Hawley to probe whether the argument in Bogren’s brief represented his view of the law. Hawley’s offense is that he didn’t stop there, and went on to accuse Bogren of equating Catholics with Klansmen.

    1. Not all Catholics are bigots.

      1. Indeed. There are lots of Catholics who vote Republican! (The Catholics who vote Republican probably remember the days when Klansmen Democrats hated them with as much vigor as they hated blacks, Jews, and Republicans.)

  7. You wrote:

    Nevertheless, precedent generally favored the city (and indeed it won a motion to dismiss)

    Reality:
    U.S. District Judge Paul L. Maloney denied East Lansing’s request to dismiss the 2017 discrimination lawsuit brought by Country Mill Farms owner Steve Tennes, ruling that the plaintiffs “have pled sufficient facts to state a plausible claim for violations of the Michigan Constitution.” The city did not appeal the ruling.

    So, you’re pretty much getting EVERYTHING wrong here

    I tried to provide links, it got held up in moderation

  8. So, you’re pretty much getting EVERYTHING wrong here

    11/16/2017 28 OPINION AND ORDER granting in part and denying in part 13 motion to dismiss; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) (Entered: 11/16/2017)

    1. GRAND RAPIDS – A federal judge will decide whether a Charlotte farm can return to the East Lansing Farmers Market when it starts in June.

      Steve Tennes, who owns Country Mill Farms northeast of Charlotte, sued East Lansing in May 2017 after being denied a vendor’s license for the city’s farmers market.

      Tennes attended the end of the 2017 farmers market after federal Magistrate Judge Ray Kent issued a preliminary injunction ordering East Lansing to allow Country Mill to return to the city farmer’s market in September 2017.

      Country Mill also participated in the 2018 market after the city granted Tennes a license because of the order.

      The judge trimmed down the complaint, but it still goes forward, and East Lansing hasn’t been able to exclude them from the Farmer’s Market.

      Which is pretty much diametrically opposite of “Nevertheless, precedent generally favored the city (and indeed it won a motion to dismiss)”

      Since if they won the motion to dismiss, the case would have been dropped, and Tennes wouldn’t be selling at the FM

      1. The relevant order is reported at 280 F. Supp.3d 1029. As DMN noted, it granted the motion in part (dismissing some of the claims), and denied it in part (allowing other claims to go forward). The judge didn’t directly engage with the analogy at issue here, but he generally seems to have only allowed the claims alleging some form of retaliation to go forward.

        1. The judge didn’t directly engage with the analogy at issue here, but he generally seems to have only allowed the claims alleging some form of retaliation to go forward.

          There’s no question under existing 1A precedent that the city can enforce an anti-discrimination law regardless of religious objection. What the court allowed to go forward was the plaintiffs’ claims that the rule in question was not a neutral one of general applicability, but was pretextually enacted to target the plaintiffs.

      2. “The city excluded Country Mill from its farmers’ market because its owner publicly announced that he would not host a same-sex wedding on his farm…”

        Why is his conduct at his home relevant. Are they stating that what you do at home will be held against you at work, by 3rd parties? So intolerant.

  9. […] conservative credentials but they couldn’t disagree more.  David’s title is, “Senator Josh Hawley is becoming a first-class demagogue.”  How can two people with such great conservative credentials disagree so […]

  10. If only this guy had been Michigan’s Attorney General, he could have refused to defend the constitutionality of the law, as indicated in this article from *Governing* magazine about Attorneys General refusing to enforce laws refusing recognition to same sex marriage, etc:

    “It may seem problematic to have AGs decide on their own which state laws can stand up to scrutiny, but ultimately someone has to make the call. The American system of governance is all about splitting power. When it comes to legal matters, the attorney general is most often going to be the one who has the final word.”

    https://www.governing.com/topics/politics/gov-attorney-general-refusal-defend-state-laws.html

    But, of course, as a purely private attorney, this guy had no choice but to take on the defense of a law he believed to be unconstitutional. /sarc

    No, wait a minute, as a private attorney he has *more* discretion than an Attorney General to decide which laws to defend.

    Presumably, he defended this law either because he thought it constitutional, or had no strong views either way and got assigned it by his firm or whatever.

    1. From 2013 –

      “Attorney General Kamala Harris turns down Prop 8 defense before Supreme Court

      “Harris, a San Francisco Democrat, said Prop. 8 violates the Constitution, and the U.S. Supreme Court has described marriage as a fundamental right 14 times since 1888.

      “”It’s well within the authority vested in me as the elected attorney general to use the discretion of my office to make decisions about how we will use our resources and what issue we will weigh in on or not,” Harris said.”

      https://abc7.com/archive/9042429/

      1. (There should have been an ellipsis before “Harris, a San”)

  11. FWIW, since Hawley kept interrupting Bogren and not letting him finish, I couldn’t get much out of Bogren’s answers, but there is a huge ambiguity when you ask an attorney whether they stand by or even agree personally with an argument made in a brief. Let’s say the attorney says yes. Does that mean “I personally think this is *and* should be the law?” Or it could mean “I personally think that brief accurately represents the law as it stands, though I don’t agree with it.” Or it could also mean “I personally think that brief accurately represents the law as it stands, and I agree with the precedent such as it is (in this case that sincere religious belief shouldn’t allow an exemption from antidiscrimination law), but that doesn’t mean that I think the statute at issue should have extended to a case like this to begin with.” I, for example, think the brief gets the precedent exactly right, and is correct that we can’t in practice distinguish between the KKK’s sincere religious belief and a Catholic’s for free exercise doctrinal purposes. I also would likely support a somewhat broader religious exemption than current constitutional doctrine allows, and I definitely wouldn’t apply a “public accommodations” law to the issue of (a) whether a private orchard must host a same-sex wedding much less (b) whether this should bar the orchard from participating in a farmer’s market when the purported public accommodation is in an entirely different jurisdiction than the market. But neither issue a nor b were before the court.

    1. It’s one thing to be the lawyer for someone accused of murder or sex predation or what have you, since such a person (even if guilty) only represents himself/herself.

      But before undertaking to take up the cause of the government – supposedly a representative institution – as it attacks a peaceable citizen in his livelihood, shouldn’t the lawyer make sure of his ground and ensure he’s on the right side? Or if a lawyer actually believes in the man/woman definition of marriage, should he defend a government body trying to enforce a different definition? We saw lawyers (attorneys general, no less) who had scruples about defending governments who were trying to *enforce* the man/woman definition of marriage.

      Should this guy have a less delicate conscience than Kamala Harris?

      1. “before undertaking to take up the cause of the government – supposedly a representative institution – as it attacks a peaceable citizen in his livelihood, shouldn’t the lawyer make sure of his ground and ensure he’s on the right side?”

        Huh? Both sides of a dispute get lawyers. The job is to advocate for the client. Sometimes the client’s interests are served by fighting, sometimes by conceding. But the client decides which, not the lawyer.

        1. Then why didn’t California’s Prop 8 get the defense of the California Attorney General?

          1. (In the US Supreme Court, I mean)

          2. “Then why didn’t California’s Prop 8 get the defense of the California Attorney General?”

            Because one of the parties to the lawsuit didn’t want to pursue it any more.

            1. So the attorney for one party can throw in the towel, and it’s attributed to the party they represent.

              Fine, why couldn’t this guy have told the court that East Lansing wasn’t pursuing the case anymore?

              1. Even better, the attorney can resign and let some other attorney handle the case.

                Shouldn’t Harris have done that?

              2. “So the attorney for one party can throw in the towel, and it’s attributed to the party they represent.”

                Or the party can throw in the towel, and that’s also attributed to the party, whether the attorney thinks they could have won or not.

            2. A better example is Windsor v. United States (2013).

              In that case, the “client” (US House of Representatives) did want to continue pursuing the case (defending DOMA Article 2), but the lawyer (US Attorney General’s office) thought it was a constitutional loser.

              As you saw in that case (and as in previous disagreements between the Attorney General and Congress), the Attorney General bowed out, and Congress hired an outside attorney.

              So sure, the “client” gets to make the call, but they aren’t entitled to any specific lawyer going along for the ride.

              For that matter, even if you want to argue that Attorney Generals should be required to provide an initial defense of a law, there is no reasonable argument that they must appeal a loss.

          3. Because the California AG violated her duty to represent her client zealously. (Ed Whelan (who, by the way, thinks Sen. Hawley is out of line here) has argued extensively that the Justice Department has an obligation to defend the constitutionality of any statute under judicial challenge, even one the AG thinks should be declared unconstitutional, unless there is literally no reasonable argument that can be made. The same principle should apply to state AGs and state statutes.)

  12. Bernstein is being extraordinarily obtuse here. As an example of sheer intentional demagogic garbage it is hardly possible to do better than the quote that quote from Bogren’s brief that Bernstein provides. Bogren focusses the bulk of his argument on how clearly the law would not allow the discrimination in question if it was based on race. Over and over again KKK, NOI, racist against interracial marriage, wouldn’t be allowed. That’s right, we had a civil war over racial discrimination and passed two constitutional amendments about it.

    But when it comes to the actual issue in the case–whether discrimination based on homosexual behavior is constitutionally barred the same way racial discrimination is, even though we did not fight a civil war in defense of homosexual behavior, or pass any constitutional amendments protecting it from discrimination–here Bogren elides the issue, even tries to hide it, which of course IS his job.

    By all means let’s be honest about this. When the law is not on his side a lawyer’s job is to try to hide that fact. His job, at least if he is a private attorney, is to be a flaming rotten demagogue, and Bogren’s brief exemplifies this, starting with his bold “no fricking way” opening (proved wrong by the Masterpiece Bakery ruling):

    “There can be no constitutionally sound argument that sincerely held religious beliefs would permit a secular business to avoid the prohibitions against racial discrimination or gender discrimination found in Federal, State and local laws. The Bob Jones Univ. decision put such an argument to rest.”

    Liar. Bob Jones was a racial discrimination case, not a “gender” discrimination case. Notice how Bogren pretends that the Jones ruling applied to both? (And it’s called “sex,” not “gender,” you SJW fruitcake.)

    Bogren goes on to cite lesser sex discrimination rulings: “Similarly, other courts have held the gender anti-discrimination provision of Title VII could be constitutionally enforced against religious entities.”

    No not similarly. The Bob Jones case was not about sex. These lower court cases were not following SCOTUS on Jones.

    And that’s it for the actual issue. Bogren dishonestly equates homosexual discrimination with racial discrimination, which he then goes after hammer and tongs: are we going to allow this KKK behavior?????!!!!!!!

    Then we get to the NEXT actual rotten demagogue in the story. Oh sorry, Bogren might not actually BE a demagogue. It was just his job to ACT like one. But the Democrat appointed Michigan judge who embraced Bogren’s demagogeury, THAT is a real demagogue, lapping up Bogren’s just-my-job slander, buying his lying claim that our Constitution protects discrimination against homosexual behavior (even private discrimination) the same way it protects against racial discrimination, and thanks to this hand-in-glove 2-step between professional demagoguery and judicial demagoguery a phony Constitution gets imposed that we are still trying to throw off.

    Now Bernstein says it is demagoguery for Hawley to ask Bogren to answer for this travesty that in Bernstein’s view was just Bogren doing his job. You lawyers don’t think you should have to answer for your job? After he fed demagoguery to a demagogic judge, it is beyond the pale for us to ask what Bogren will do if HE is elevated to judgeship?

    I would actually be harder on Bogren. As state’s attorney he should have confronted the distinction between racial and gay-sex discrimination honestly, not tried to elide it. Instead of demagogically hammering against racial discrimination as if that or its equivalent was what was at stake he should have openly made what case could be made for a constitutional bar against homosexual discrimination.

    That would increase his chance of losing but would also increase the chance of a constitutionally sound outcome. Do we really want state’s attorneys offering demagogic garbage to judges in hopes they will embrace it?

    This one case actually looks quite bad for Bogren, and Bernstein’s over-the-top, just-doing-his-job defense, calling HAWLEY a “first class demagogue” for being mad about the s#!tpile Bogren spoon-fed to a partisan-hack judge, is a bad look for Bernstein.

    1. But when it comes to the actual issue in the case–whether discrimination based on homosexual behavior is constitutionally barred the same way racial discrimination is

      That is not the actual issue in the case or even one of the issues in the case. You’re obviously not an attorney and have not read the pleadings. You don’t even grasp the difference between constitutional requirements of equal protection, which applies to state action, and anti-discrimination laws, which apply to private actors as well.

      1. All anti-discrimination law conflicts with First Amendment rights to free association and possibly religious liberty. Whether a particular restriction on discrimination passes constitutional muster depends whether the legitimate state interests in the bar on discrimination are sufficient to outweigh the opposing rights to association and religious freedom. Thus the same distinction between racial discrimination and other kinds of discrimination (behavior-based in the case of homosexuality) comes up in anti-discrimination law as in equal protection law. Bars on racial discrimination by businesses are on stronger ground than bars on discrimination against homosexuals because the the equal protection clause was first and foremost intended to bar racial discrimination by state governments, establishing opposition to racial discrimination as a legitimate and substantial state interest. Bogren tries to sneak homosexual discrimination in to the same category by pretending that Bob Jones v. U.S. was about sexual as well as racial discrimination. Very dishonest, and very much the central thrust of his argument, as he over and over equates homosexual discrimination with racial discrimination.

        Hawley is articulate on this. He ought to be asking explicitly: “Is there really no distinction to be made between homosexual discrimination and racial discrimination in anti-discrimination law?” Nevertheless he does put it out there by reading the claim of the KKK group that it has Christian justification for opposing interracial marriage and asking Bogren if there is really no way to draw a principled distinction between this policy of racial discrimination and the case of homosexual discrimination. The exchange begins at 1:15 of the video here. At 2:10 Bogren answers flatly that no, “from a legal perspective there is no distinction.”

        https://www.youtube.com/watch?v=gLGUiAr-Fik

        These are in fact very different cases. Bogren is under a lot of pressure here and he is trying to pretend that the issue is a different more general point about giving weight to religious views: if we allow religious views to carry the day here then we have to allow them to carry the day here. But that is wrong. There is a different weight on the other side, a heavier weight in the case of racial discrimination, which can and should lead to a different outcome, and now has led to a different outcome in the Masterpiece Bakery case.

        Hawley is right. Bogren ought to be drawing a distinction between racial and homosexual discrimination but he elides it, just as he dishonestly did in his brief on the case.

        There is a very important resolution to get right here: that the proper weight to give to religious views in conflict with anti-discrimination law and any other state interests is intermediate scrutiny, as found in The Religious Freedom Restoration Act of 1993 (RFRA). ALL infringement of liberty interests of any kind should have to meet intermediate scrutiny – there should have to be a good state reason (not just a rationally related one), and religion is a perfectly good place to start, but it can’t be too high a test because there are some very evil religions out there, and there is no principled way to distinguish deistic religions from any other ideologies (which can all be seen as having their own views of the existence and nature of god), so just use the right test (intermediate scrutiny) for all infringements of liberty that don’t violate specific enumerated or non-enumerated rights.

        So it is disappointing to see a judicial nominee whose instincts are to evade the issue instead of go into it. But it’s just as snippet. I’m certainly not going to pass harsh judgement on Bogren for this one tidbit, but it is a bad tidbit.

    2. But the Democrat appointed Michigan judge who embraced Bogren’s demagogeury, THAT is a real demagogue,

      Not only do you keep using the word demagogue without understanding what it means, but the judge was appointed by George Bush, so you couldn’t even competently get your Trump-style stupidity correct.

    3. “the actual issue in the case–whether discrimination based on homosexual behavior”

      Wait… people were having homosexual sex in the wedding venue?

    4. Over and over again KKK, NOI, racist against interracial marriage, wouldn’t be allowed. That’s right, we had a civil war over racial discrimination and passed two constitutional amendments about it.

      Those were about slavery, not racial discrimination, which even the abolitionists were firmly in support of.

      For that matter, there isn’t a single constitutional amendment that would prevent a deli from putting up a “no Catholics allowed” sign. It’s the Civil Rights Act (1964) that does not.

    5. I would actually be harder on Bogren. As state’s attorney he should have confronted the distinction between racial and gay-sex discrimination honestly, not tried to elide it.

      I’m not sure what ellision you’re seeing. As the quoted portion of the brief makes clear, Bogren raised the possibility that a different standard might apply to anti-discrimination laws based on race than anti-discrimination laws based on sexual orientation, and offered authority saying that the standard is the same. Maybe you think he’s substantively wrong about the significance of those cases, but I hardly see how he was hiding the ball.

  13. I agree that a layer should not be subjected to demagoguery for vigorously representing a client, and also that the argument made is a standard argument that has not infrequently won in lower courts and which a competent and ethical lawyer may well be obligated to make in zealously representing a governmental entity attempting to enforce a discrimination law.

    That said, it is not necessarily a sure-win argument. The Supreme Court has more or less sidestepped it. While race is a compelling-interest category, several standard categories, including sex, age, and disability, are intermediate scrutiny or lower categories. It is by no means clear that sexual orientation will be classified as a compelling interest category comparable to race.

    After all, in the past the court’s Conservative Justices, including Justice Roberts, vigorously dissented from the Court’s gay rights jurisprudence. And the court now has a Conservative majority, and Justice Roberts is currently widely considered the center member with four Justices to his right.

    1. Why would anyone want to separate race and sexual orientation into different categories?

      People are born with whatever DNA that was provided to them (i.e. sexual orientation is NOT a choice).

      1. Because “sexual orientation” is behavior, while race isn’t?

        And “sexual orientation is NOT a choice” is more of an assertion than an argument. It’s one of those premises that it’s forbidden to question.

        1. “Because ‘sexual orientation’ is behavior, while race isn’t?”

          It is?

          1. Yeah, pretty much, it is. At the very least it’s about what sort of behavior you want to engage in, even if for some reason you happen to be refraining.

            Categorically different from a mere difference in pigmentation, and the difference is of a sort that typically matters; Caring about conduct, even potential, is generally much more rational than caring about skin color. (Though I suppose there are cases where skin color matters, casting decisions in theatrics, that sort of thing.)

            1. “Yeah, pretty much, it is. At the very least it’s about what sort of behavior you want to engage in, even if for some reason you happen to be refraining”

              So it’s also behavior, but also about refraining from behavior?

              “Categorically different from a mere difference in pigmentation”

              What about refraining from pigmentation?

              1. Sexual orientation isn’t behavior but gender certainly is.

              2. To paraphrase Rush, to refrain from behaving is also to behave.

                1. So, you want to differentiate between person A, who refrains from having gay sex because A is not gay, and person B, who refrains from having gay sex because today is Thursday, because refraining is behavior?

        2. Because “sexual orientation” is behavior, while race isn’t?

          Conflating sexual orientation with behavior is how you get Kinsey’s “1-in-10” number.

    2. “While race is a compelling-interest category, several standard categories, including sex, age, and disability, are intermediate scrutiny or lower categories.”

      Depends on the constitution of the state where the issue has arisen. Some states protect sexual identity and orientation in their constitutions, and some do not.

      1. Can you please give an example of a state with explicit sexual identity and orientation in its Constitution?

        1. All of the ones where they inserted “married people have to be different genders” into the Constitution to forestall having a court notice that it this requirement wasn’t in the statute previously? You know, like they tried to do in California, but it didn’t work.

    3. I’m not following how the level of scrutiny applied to laws which are challenged as discriminating on the basis of race or sexual orientation is relevant in this case.

      East Lansing’s anti-discrimination law does not discriminate on the basis of race or sexual orientation. It prohibits private-sector discrimination and applies equally to blacks, white, straights and gays.

      1. Problem is, they are going after alleged discrimination outside of their jurisdiction.

  14. I agree with Michael Bogren’s argument, both professionally and personally. The government can’t be distinguishing between so-called “mainstream” religious beliefs and “non-mainstream” religious beliefs and give anymore protection to so-called “mainstream” beliefs than other beliefs. Nor is it a valid inquiry for the government to question the sincerity of belief (where, of course, it would be assumed that mainstream beliefs are held sincerely and non-mainstream beliefs are held insincerely).

    That said, Sen. Josh Hawley is NOT a demagogue, he is merely wrong. The Senator is RIGHT to hold Bogren’s feet to the fire based on his dislike of the sort of legal reasoning Bogren finds persuasive and chooses to deploy. Confirmation to a lifelong tenured position is a very serious business and Senate confirmation is an important (although perhaps inadequate) democratic check on the power of judges.

    1. Hawley is a lawyer and knows full well the role of an advocate in the courtroom, and that Bogren can believe his argument was valid and favorable to his client without also believing that it was a balanced view of the current state of the law. The Senator would have been justified in exploring Bogren’s views of the latter, but he didn’t.
      Whether you call it demagoguery or grandstanding, public congressional hearings always seem to be heavily influenced by the presence of cameras. I’m not suggesting they shouldn’t be there, lack of transparency would be worse, but I do think the members would spend less time speechifying and table pounding and more time doing their jobs if the media weren’t watching.

      1. I am not seeing the “I don’t personally believe that” line of defense very interesting or relevant.

        The legal argument made here is relevant, because, at least probabilistically, it shows the sorts of reasoning that the lawyer thinks a judge would find persuasive. In many cases, you can infer something about the type and nature of legal reasoning that a person as a judge would accept and find persuasive by looking at the type and nature of arguments they made previously in their career when they acted as an advocate.

        Whether the lawyer actually “personally believes” an argument is, if anything, less relevant. This is not a personal moral issue, where we believe that “good people” personally believe certain arguments and “bad people” personally believe other arguments. So, the defense “I don’t personally believe the argument I made” just is not that interesting. We are trying to determine how you would approach your decision-making as a judge, not merely decide whether you are morally fit or morally unfit.

        In this case, in my view, Senator Josh Hawley is wrong and attorney Michael Bogren is right in the sort of legal reasoning that ought to be deployed. But, the Senator has not only a right, but a duty to inquire into the legal reasoning used by Borgen, especially if he finds it objectionable.

        After all, it is not only those who have correct legal views, as determined by David Welker, who should engage and challenge the legal reasoning of judicial nominees.

        1. Whether, when acting as judge, he would find the legal argument convincing is the relevant question. I don’t know how you got the idea I was saying anything about his normative views.

          1. I think we are largely in agreement. Perhaps the only exception being whether we are too concerned about so-called “demagoguery or grandstanding.” The reason that people take a more emotional tone to issues sometimes, is because the outcomes are very important to them.

            A Senator communicating not only logically but also emotionally when they believe the stakes are high is not problematic. Emotion addresses goals (or what we want) while logic addresses means (how to get what we want). Both are appropriate and have their place.

            One can see how emotion can get out control. For example, if the Senator were to bully the witness. I didn’t feel that was happening here, though.

            1. The problem is that you don’t the definition of demagoguery: “an appeal to people that plays on their emotions and prejudices rather than on their rational side, often involving falsehoods.”

              1. Most arguments involve emotion. And when the stakes are perceived to be higher, the greater the emotion.

                Logic as a tool is the servant of emotion, in that it tells you how to achieve an end, but not what your end should be. We use or “instincts” or “emotions” to determine our goals and purpose.

                I think appeals to a person’s “purely” rational side can only exist when there is complete agreement on goals. Which is rare, since the goals people have tend to conflict, at least a little. So, most appeals will involve some emotion, which is perfectly legitimate. A more emotional appeal is a signal of how much you value a goal, and others can process that signal to negotiate with you. If someone values X more than you value not-X, then possibly the basis for a mutually beneficial trade is thereby established, assuming that can deliver to you Y, which you value more than not-X and where they value X more than not-Y. If people did not make emotional appeals, then information which is the basis for trade would not be as efficiently exchanged, and that would be a suboptimal result.

                If you are going to say that the Senator interrupted the witness too much, I would agree with you. Because that is rude. Let the witness answer the question. I think the word “demagoguery” is substantially farther than I would go to describe the situation though, since when I think of demagoguery, I think more of a social psychology involving dominance and submission and groups, rather than merely expression of strong emotion.

  15. Who wants a second class demogogue? First class all the way.

    Bogren is 61 and a “blue slip” nominee acceptable to the two Dem senators so hardly a conservative.

    I think such a weak nominee should be 100% acceptable to all GOP senators or not get confirmed.

    1. “I think such a weak nominee should be 100% acceptable to all GOP senators or not get confirmed.”

      Sure. Just because a judicial nominee is selected by the President and acceptable to more than half of the Senate is no reason to let them be a judge.

  16. […] This is the demagoguery of a Democrat, so Why is Senator Hawley acting like Cory Booker. . . ? […]

  17. If Bernstein were a person of courage and integrity, he would be publicly attacking Rakesh Khurana long before he even thought about Josh Hawley. But of course, that would not only be career-impairing, it would offend other law professors. Some of them might be rude to Bernstein or not speak to him. Obviously no ordinary man–at least of the professorial variety–has that kind of courage. (The one exception, pretty much in the whole world, is Alan Dershowitz. I don’t know what circumstances gave rise to that single bizarre anomaly.)

    1. This is kind of funny, because I haven’t a clue as to who Rakesh Khurana is.

      1. Rakesh Khurana!
        What a wonderful phrase
        Rakesh Khurana!
        Ain’t no passing craze
        It means no worries
        For the rest of your days
        It’s our problem-free philosophy
        Rakesh Khurana!

      2. The man who fired Ronald Sullivan for representing an unpopular defendant. But obviously, exposing academic misconduct is not career-enhancing, is it?

  18. […] I agree. Reason‘s David Bernstein called Hawley a “first-class demagogue” because of this attack on the nominee. Bernstein, a law professor, said that Bogren’s job as city […]

  19. ” The city excluded Country Mill from its farmers’ market because its owner publicly announced that he would not host a same-sex wedding on his farm, ”

    and

    “if the government is required to refuse to enforce antidiscrimination laws based on what many see as mainstream, sincere and relatively benign religious beliefs, the government will also have to accommodate discriminatory actions based on sincere religious belief that almost everyone recognizes as noxious, such as the beliefs of the Nation of Islam and the KKK.”

    I’m having trouble putting these two passages together.

    Is Bernstein saying that if the government allows the Catholic Church to refuse to allow a same-sex marriage at one of its churches, it must allow the Nation of Islam to refuse to hire white people?

    Because that seems ridiculous. And yet, the Catholic Church (or an orthodox synagogue) is entirely allowed to refuse to allow a same-sex marriage at one of its properties, and the government is still able to enforce other anti-discrimination laws. Does the Catholic Church have more right to freedom of association than Country Mill Farms? If it does, then doesn’t that violate the establishment clause?

    1. I’m having trouble putting these two passages together.

      Clearly. You dived straight into the exceptions outlined in the CRA (1964) that are mimicked in all state-level laws to show that the general example was wrong.

      Put simply, yes, any church can choose which marriages to solemnize (or not solemnize) in their church. Similarly, they can discriminate along any criteria they wish when hiring people at the church. The only place this gets dicey is when you start to talk about church-adjacent groups (like a hospital, university or charity associated with a church), rather then the church itself.

      But unless Country Mill Farms is claiming it is a church (it isn’t), then those exceptions explicitly don’t apply, leaving them in the same pool as everyone else.

      So to answer your question…

      Does the Catholic Church have more right to freedom of association than Country Mill Farms? If it does, then doesn’t that violate the establishment clause?

      Yes and hasn’t been ruled that way yet.

  20. “the government will also have to accommodate discriminatory actions based on sincere religious belief that almost everyone recognizes as noxious, such as the beliefs of the Nation of Islam and the KKK.”

    This does not strike me as an event that would have much impact on anyone and hardly justifies infringing upon the freedom of association guaranteed in the 1st Amendment.

  21. […] takes a much more coherent view of antitrust policy than many wannabe trust-busters in Congress have. The bill focuses on clear consumer harms created by market concentration—namely higher […]

  22. […] takes a much more coherent view of antitrust policy than many wannabe trust-busters in Congress have. The bill focuses on clear consumer harms created by market concentration—namely higher […]

  23. […] takes a much more coherent view of antitrust policy than many wannabe trust-busters in Congress have. The bill focuses on clear consumer harms created by market concentration—namely higher […]

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