November 12, 2004
Less Work
Listening to oral arguments in U.S. v. Lopez today, I was interested to see that again marijuana came up at the end of the argument. When the counsel was having a hard time deciding whether simple possession of marijuana in a school should be federally-criminalizable where guns are not, Scalia interrupted him with:
Distinguish that; we wouldn't want to get all of these drug possession cases out of the Federal courts. . .
Maybe another reason for the Supremes to side with Randy Barnett in Raich?
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Slippery Slopes
(Via Carey Cuprisin) Jordan Fowles fleshes out another reason that some religious organizations and religious people are nervous about the extension of governmental protection to same-sex unions:
[T]hey fear a more direct but subtle force which will bring pressure on churches such as the Catholic church to ... sanction gay marriage. That force is the United States government- both the judicial and the legislative branches. ... (P)recedent exists in our First Amendment jurisprudence to suggest that the government CAN bring great pressure to bear on religious institutions who, for religious reasons, refuse to participate in the social agenda of equality.
Co-crescatter Amy Lamboley has discussed this fear before, and it's generally a good instantiation of Eugene Volokh's point about slippery slopes-- even if an organization is itself willing to draw a line someplace further down the road (permit other people to engage in gay marriage so long as it doesn't have to accept them wholesale into its private institutions) it may rightly be afraid that other people won't be willing to draw that line, and thus it avoids giving ground now in order to be able to hold it later.
This is the chief (pragmatic, not constitutional) argument for a prohibition applying anti-discrimination law to private actors. (Which was recognized in Boy Scourts v. Dale, but not in opposition to the 1964 Civil Rights Act.) If one believes-- as I do-- that government discrimination on the basis of religion, race, sexuality, gender, etc. is much more evil than private discrimination on the same bases, it's quite possible that it will be much harder to get the former without waiving the latter. But without some binding way to waive that latter argument, institutions will be more skeptical, and therefore are much harder to convince.
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