The Investor's Business Daily editorial that I mention in my post below on religious accommodations also specially faults the ACLU for declining to object to such accommodations:

Minnesota is offering a program to Muslims who want to buy a home but don't want to break their religion's laws about interest. Where are the civil libertarians who want to keep church and state separated?

The Minnesota program, the first in the nation, will be administered by the state's housing agency, which will buy homes, with taxpayers' dollars, and resell them at higher prices to Muslim buyers.

To circumvent Islamic Shariah law, which, we're told, forbids Muslims from buying or selling loans that charge interest, the transaction will have higher up-front costs, including the amount of interest that would have been charged over the life of the loan.

This is a clear mixing of religion and state, which runs afoul of the Constitution and should incite the American Civil Liberties Union to launch a complaint and file a lawsuit. Yet we've seen no word from the group that recently filed a lawsuit against a Muslim, mosque-based charter school that takes public funds.

Is the organization acting cautiously, afraid to anger a group whose more enraged members have gained a reputation for taking advantage of our politically correct culture and bullying officials to get their way? Have ACLU leaders lost their nerve, fearful activists will target them? They've already seen Minnesota officials, who, when pushed by activists demanding preferential treatment for Muslims, agreed to provide foot-washing facilities on the campuses of several universities.

Surely if the Minnesota home-buying program -- called Murabaha financing -- were reserved for only Christians or Jews, the ACLU would have roared by now.

But it hasn't....

I'm generally skeptical about claims that some group is being inconsistent or untrue to its principles, or that had this or that been different the group would surely have complained. This is especially so because such claims are often made by people who appear to have little sympathy with the group and thus little knowledge of the group's underlying reasoning. I can't be sure of that as to the IBD -- for all I know the editorial might have been written by someone who is well acquainted with the ACLU's perspective on the Religion Clauses -- but it seems likely.

The Justices who are among the ACLU's greatest heroes -- Justices Brennan, Marshall, and Blackmun -- had long taken a view that strongly supports many kinds of religious accommodations. Consider Justice Brennan's opinion in Sherbert v. Verner, the 1963 case that mandates religious exemptions for Sabbatarians from requirements that unemployment compensation claimants be available to work Saturdays. Consider the three Justices' dissent from Employment Division v. Smith, which held that religious exemptions are generally not mandated by the Free Exercise Clause, and in particular that religious peyote users weren't entitled to exemptions from peyote laws. Or consider a range of other votes cast by these Justices in favor of exemptions for the Amish, Jews, Sunday-observer Christians, American Indian religious groups, and others.

The ACLU has likewise long supported such accommodations. Of course it's harder to evaluate its record on this since it is not as visible as the Justices', and is necessarily more mixed because individual chapters generally make their own litigation decisions. But it's safe to say, I think, that religious exemptions for religious observers have often been an ACLU issue just as they have been a Brennan, Marshall, and Blackmun issue.

To be sure, there have been two major limits on such support, both from the ACLU and these three liberal Justices. First, the liberal Justices and the ACLU have viewed the Establishment Clause as barring even many forms of evenhanded aid that end up in the hands of religious institutions -- for instance, school aid programs that equally benefit public schools, private secular schools, and private religious schools. Their premise has been that government funds generally can't go even indirectly, and even as part of an evenhanded program, to the teaching of religious views (except in ill-defined contexts; I disapprove of this view, but here I am just trying to describe it). So even though school choice programs may well be defended as accommodations of religious objectors to public secular schooling, the Justices and the ACLU would have rejected them. But this isn't in play in the Minnesota case, because no government is money is going to be used by religious institutions for the teaching of religious doctrine. (If anything, Sherbert involved more of an financial benefit to religion than this case does.)

Second, any regime of exemptions for religious observers has to be only a presumption in favor of exemptions, and only a weak presumption at that: Clearly sometimes the exemptions must be denied, for instance as to murder laws, trespass laws, most tax laws, and a vast range of other contexts. Naturally, one's view about when there's a sufficiently "compelling" interest to justify an exemption varies depending on one's ideology. My guess is that the ACLU, for instance, has on balance been skeptical of claims for religious exemption from many antidiscrimination laws, because they view the interest in preventing discrimination as almost always "compelling." But again there's no reason to expect the ACLU to be skeptical here.

So the ACLU, and what one might call the ACLU-friendly wing of the Court -- Justices Brennan, Marshall, and Blackmun (I speak especially of the later Blackmun, rather than Blackmun in his early, fairly conservative years) -- have broadly supported religious exemptions, at least where no funding to religious institutions or schools is involved, and no very strong government interests for denying the exemptions have been present. There's nothing surprising or cowardly or unduly favorable to Muslims over Christians or Jews in the ACLU's stance.

The ACLU and the ACLU-friendly Justices may well have been wrong in their Religion Clauses views. (I actually opposed both much of their Establishment Clause thinking as to evenhanded aid programs and their Free Exercise Clause support for constitutionally mandated exemptions from generally applicable laws.) But there's no reason in this case, I think, to fault them for supposed inconsistency with their own perspectives.

Investor's Business Daily writes:

Minnesota is offering a program to Muslims who want to buy a home but don't want to break their religion's laws about interest....

The Minnesota program, the first in the nation, will be administered by the state's housing agency, which will buy homes, with taxpayers' dollars, and resell them at higher prices to Muslim buyers.

To circumvent Islamic Shariah law, which, we're told, forbids Muslims from buying or selling loans that charge interest, the transaction will have higher up-front costs, including the amount of interest that would have been charged over the life of the loan.

This is a clear mixing of religion and state, which runs afoul of the Constitution ....

[Are potential opponents of the proposal] afraid to anger a group whose more enraged members have gained a reputation for taking advantage of our politically correct culture and bullying officials to get their way? ... [Are they] fearful activists will target them? They've already seen Minnesota officials, who, when pushed by activists demanding preferential treatment for Muslims, agreed to provide foot-washing facilities on the campuses of several universities.

It's not within the legitimate duties of government to ensure that members of certain religions can buy homes....

I think IBD is wrong about this (and about its criticism of the ACLU on this, more on which in a separate point). Here's why.

The government routinely faces situations where certain government benefits are set up in ways that keep certain religious groups from taking advantage of them. Often it's too burdensome or expensive to restructure the benefit to accommodate those groups. But often it is possible, and when it is possible, I think it's eminently proper for the government to do so. And it is certainly routinely done for groups other than Muslims, so the implication that Muslims are getting special treatment because of modern "political[] correct[ness]" strikes me as quite unsupported.

1. Let's look at a very simple scenario: Imagine that a government office runs a cafeteria for employees, and imagine that it is always careful to provide some pork-free dishes for its Jewish employees, and some vegetarian dishes for Buddhist employees and some Jews who will only eat vegetarian dishes in nonkosher establishments. (Obviously some Jews won't eat anything in nonkosher establishments, but I know some Jews who will eat vegetarian dishes.)

This makes sense for the government, since it keeps its employees happy. It makes sense for the employees. And it imposes little burden on anyone. Of course, if it was a matter of buying wholly kosher food just in case the one observant Jewish employee wanted to eat it, and the food cost more, used up shelf space, and often got thrown out uneaten, the analysis might be different. But when there are a considerable number of people who are helped by this program, it should be perfectly acceptable. (I should note that some nonreligious vegetarians -- or for that matter nonvegetarian vegetable lovers -- might enjoy having the vegetarian dishes as well, but I don't think this affects the analysis.)

2. Or consider another common scenario: The government offers people a job, but requires employees to follow various rules. If the rules are important to the job, it may be sensible to require everyone to follow them. But if the rules are peripheral -- for instance, a no-headgear rule, or a rule requiring everyone, including women, to wear pants, where there is no safety reason for the requirement -- it makes sense that the government would create an accommodation, for instance for men who want to wear yarmulkes, or for women who feel it wrong for women to wear pants. Federal antidiscrimination law requires such accommodations when they are not burdensome, both for private and public employers. But whatever you think of that, I think it's quite proper for an employer to make such accommodations.

3. Likewise, unemployment benefits are generally available only for people who are willing to take reasonable job options that they are offered. This would sometimes mean that Sabbatarians, such as Seventh-Day Adventists and Orthodox Jews, would lose unemployment benefits because they wouldn't take offered jobs that required them to work Saturdays. In 1963, the Supreme Court held (in Sherbert v. Verner) that Sabbatarians had to be exempted from those requirements. I don't think Sherbert was correct, at least as to its most expansive reasoning, and I think there may be good reasons to deny Sabbatarians such an exemption, which does give them something of an advantage over others. But the existence of this principle illustrates that religious accommodations began long before there were Muslim claimants, and that Muslims are asking for accommodations that are not far different from those that other religious groups have gotten.

4. On to this particular proposal: As best I can tell, the financing option is available to everyone, not just Muslims; it's just that Muslims will find it useful and others won't. Moreover, nothing I've seen suggests that Muslims are getting a significant secular benefit here, such as lower aggregate rates.

If I'm right on this, then what we have here is much like the pork-free food option in the cafeteria line, or a break from no-headgear requirements (though even less troublesome than such a break, because it's available to everyone, not just religious objectors). The government set up a general program that it was hoping lots of people could take advantage of. To its surprise, some people have a religious objection to the program, and thus can't benefit from it. Fortunately, it's pretty cheap to slightly tweak the program in a way that doesn't undermine its core purposes, and that doesn't materially burden other beneficiaries or the taxpayers, but that lets religious objectors -- here Muslims, but in other contexts Jews, Christians, Buddhists, and others -- fully participate in the program.

That is the extension of a generally worthy American tradition -- Muslims getting roughly similar religious accommodations that other religious groups have long gotten. It is not some rare departure from "separat[ion]" of "church and state" explainable only by modern political correctness and the supposed rage of a particular group.

I ran across this while researching a different matter; it's § 54-211(a) of the Village Code of New Lenox, Illinois, on the outskirts of Chicago (emphasis added):

(1) It shall be unlawful for anyone to do any of the following acts within the corporate limits of the village:

a. Hunt, with or without the aid of a weapon or other device, any animal.

b. Trap, with or without the aid of a trap or other device, any animal.

c. Possess or display any loaded weapon.

(2) For purposes of this section, the term "weapon" shall mean any BB gun, pellet gun, firearm, pistol, revolver, rifle, shotgun, stun gun, taser, slingshot or bow and arrow.

720 Ill. Comp. Stat. Ann. 5/24-10 does expressly provide that "It is an affirmative defense to a violation of a municipal ordinance that prohibits, regulates, or restricts the private ownership of firearms if the individual who is charged with the violation used the firearm in an act of self-defense or defense of another ... when on his or her land or in his or her abode or fixed place of business." But mere home possession for possible future self-defense purposes is not a defense. Presumably one has to keep the gun constantly unloaded until one is faced with a situation where "he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force." (720 Ill. Comp. Stat. Ann. 5/7-1.) There are exceptions for possession by various law enforcement officials and security guards, but not for ordinary citizens. Nor is the law limited to possession in a public place.

The provision is in a section titled "hunting and trapping," so it may well be that the village didn't intend to ban all possession of loaded weapons. But the Illinois rule appears to be that, though the title may provide part of the context for interpreting a statute, “'If the meaning of any particular phrase or section [,] standing alone[,] is clear[,] no other section or part of the act [including the heading] may be applied to create doubt.' Reading a provision in context does not give one a license to disregard the clear language of the provision itself.” Illinois Bell Telephone Co. v. Illinois Commerce Comm'n, 840 N.E.2d 704, 712 (Ill. Ct. App. 2005).

Fortunately, the penalty is a fine of $25 to $750, but the crime is a misdemeanor, which might well have other indirect legal effects (e.g., to enhance future sentences for other crimes on the grounds that the person has a criminal record). Washington, D.C. had a similar ban on possession of a loaded firearm, which possibly did not have an imminent self-defense exception, but it was repealed in the wake of D.C. v. Heller.

I'm looking for good sources that discuss whether there are religious groups that

1. take the view that deadly force is always bad, even in self-defense or defense of others, but nondeadly force (including pepper spray, stun guns, and other devices that are extremely unlikely to kill) is permissible, or

2. take the view that given the choice between nondeadly force and deadly force, one should always use nondeadly force, unless the nondeadly force is very likely to fail (e.g., all one has for nondeadly force is fists vs. an attacker's knife).

I would think that many denominations do take one or the other view, for instance because they take "thou shalt not kill" (as opposed to "thou shalt not murder") quite seriously, but don't go for a thoroughgoing "turn the other cheek" renunciation of all violence. But I'd like to see more concrete statements, if possible, from groups that indeed take such a view.

I realize that stun guns and pepper spray may not have gotten a great deal of specific attention from theologians, but I would think that there would have been something written on this broad subject of just what kinds of violence are appropriate even to those who frown on deadly self-defense. If any of you have some pointers, I'd love to see them. Thanks!

The case is In re Fahy (Cal. Bar Ct.); here's an excerpt from an affidavit signed by the lawyer to support a motion for a new trial:

I was convinced from the outset [of the medical malpractice trial] that [the defendant] had violated the standard of care in his care and treatment of the [p]laintiff.... During the trial that was supposed to last only 2-3 weeks, I maintained a busy law practice. As the trial continued into its 4th week, problems at work continued to mount as most of the day was devoted to my being a juror. Deliberations were a nightmare.... It was becoming very apparent that even if the other jurors were to vote in favor of the [p]laintiff on the issue of liability, that lengthy discussion would take place on other issues ...

As a result, I advised my fellow jurors that I would change my vote if Judge Ballati failed to declare a mistrial after he was advised that the jury was deadlocked because there was no way I could afford to spend another week away from the office ...

When I arrived on Monday, I changed my vote to favor [the defendant] even though he was liable for what happened to the [p]laintiff. I changed my vote so that the deliberations would finally come to an end and I could return to the office....

The court's legal conclusion:

[T]he harm to the parties and to the fair administration of justice is clear and serious when respondent disregarded his duty to vote as the facts and judge's instructions guided him, and instead voted as the convenience of his law practice swayed. To be sure, jury service for busy citizens of all occupations or with family responsibilities can be difficult, even burdensome, at times. Yet it is the accepted duty of citizens to serve, subject to the statutory provision for excuse for undue hardship. Moreover, the Judicial Council has recognized that jury service is an “important civic responsibility,” requiring court and staff use of all necessary and appropriate means to ensure that citizens fulfill this duty. Surely, respondent, as a practicing attorney at the time, was keenly aware of the role which an effective jury system serves in the fair administration of justice.

Respondent's violation was not a technical one. As the Court of Appeal and the State Bar Court hearing judge each found, respondent's vote was decisive in breaking the jury's deadlock. Patently, his change of vote to avoid continuing to serve as a juror voided the verdict he rendered and required the parties, their counsel and the courts to bear the additional costs, time and burdens of appellate and further trial court proceedings.

Because of this misconduct, because of Fahy's apparently deceitful responses to the court when questioned about this, and because of Fahy's recent disciplinary record, and because of Fahy's lack of acceptance of responsibility, he was disbarred. For more, see this S.F. Recorder article.

Of course, if Fahy had only remained quiet about his true motivation (something he initially revealed to his fellow jurors during deliberation) he would have gotten off scot-free (though that of course does not excuse his behavior).

From MEMRI, which is certainly not soft on Islamic extremism:

Scandinavian Islamic Groups Distance Themselves from Sheikh Yousef Al-Qaradhawi, Following MEMRI Translation of His Statements on Al-Jazeera TV Calling Holocaust "Divine Punishment" For Jews," Warning "Allah Willing, The Next Time Will Be At The Hand of the Believers"

In response to MEMRI TV's February 1, 2009 release of a translated and subtitled clip capturing prominent Sunni sheikh Yousef Al-Qaradhawi on Al-Jazeera TV in January 2009 calling the Holocaust "divine punishment" for the Jews and warning that "Allah willing, the next time will be at the hand of the believers [i.e. Muslims]," [1] and also saying that he would "shoot Allah's enemies, the Jews," [2] it was reported that Muslim Imams and Islamic groups in Scandinavia have distanced themselves from the remarks and are questioning association with Al-Qaradhawi...

On February 16, the Norwegian newspapers Dagbladet and Aftenpost reported that the Islamic Council of Norway had, on that same date, denounced Sheikh Al-Qaradhawi's statements on Al-Jazeera TV as "unacceptable." ...

Dagbladet quoted Kobilica as saying, "If it's [like this] that Yusuf Al-Qaradhawi honors the Holocaust, I think it's unacceptable from somebody who is an important religious reference for many Muslims. The Islamic Council of Norway will take up this issue with other scholars who sit in the European Council for Fatwa and Research." ...

DPE reported, also on February 16, that other Islamic leaders in Scandinavia had also distanced themselves from Al-Qaradhawi's comments, including Danish Imam Abdul Wahid Pedersen. It said that Pederson had told the Danish news agency Ritzau that he did not support Al-Qaradhawi's view and that this view could not be justified by the debate on the recent Israel-Hamas war in Gaza....

On February 16, 2009, the Swedish newspaper Dagens Nyheter reported that Swedish and Norwegian Muslims were distancing themselves from Sheikh Al-Qaradhawi. The paper said that Swedish Muslim Council chairman Mahmoud Aldebe said that it was a sensitive question when many European Muslims look up to Al-Qaradhawi as a person but want nothing to do with these statements, and that Muslims can see the difference between Jews as a people and Israel as a state.

Chris Geidner: "He is a conservative, it’s true. But he’s a very smart conservative, having gone to Harvard Law School and clerked for Fourth Circuit Judge J. Michael Luttig and former Chief Justice William Rehnquist." I agree with all of that, except the "But."

Tennessee House Bill 1924, proposed by Rep. Henry Fincher:

(a) This section shall be known and may be cited as the “Second Amendment Protection Act”

(b) As used in this section, “microstamped” means the technology by which a laser or other device is used to make precise, microscopic engravings on the internal mechanisms of a firearm for the purpose of ballistic imprinting, such as the firing pin, breech face or other internal mechanism, or the casing of a cartridge, so that when the firearm is fired, information identifying the make, model and serial number of the firearm, or the purchaser of the ammunition, is stamped on the discharged cartridge case and can then be matched to a specific firearm, purchaser or purchaser of ammunition.

(c) It is a [misdeamanor] offense for a person licensed as a firearm dealer under 18 U.S.C. § 923, to transfer, sell, deliver, or offer for sale, delivery or transfer, in this state any new firearm, as defined in § 39-11-106, or any firearm ammunition knowing that the firearm or ammunition has been microstamped.

(d) The owner of a firearm or firearm ammunition lawfully acquired may have such firearm or ammunition microstamped provided it was not originally sold in a microstamped condition in this state.

So a gun dealer chooses to sell a microstamped gun, and a gun buyer is perfectly willing to buy it, and that's a crime? I don't think that microstamping mandates are likely to do much good, but I see little justification for banning the sale of microstamped guns or ammunition (as opposed to not mandating such sale).

I should note that I don't think that either microstamping bans or microstamping mandates violate the right to keep and bear arms for self-defense. (I haven't thought enough about the right to keep and bear arms for other purposes to opine confidently on that, though I suspect that they don't violate such a right, either.) But I don't see a law controlling microstamped guns as sensible or just.

still not a binding contract, when the legal requirement of consideration is absent. No word on whether saying "cross my heart, hope to die, stick a needle in my eye" would have changed the analysis.

Thanks to How Appealing for the pointer.

I can't be sure, because I haven't seen an English translation of the full decision (please let me know if you have one), but here's the report from the NRC Handelsblad newspaper's Web site:

"Stop the tumour that is Islam" is not an insult to a group on the basis of its religion, the Dutch high court ruled on Tuesday. An activist from the southern town of Valkenswaard ... has been acquitted of the charge [of insulting a group on the basis of its religion, the Dutch high court ruled on Tuesday]

The man from Valkenswaard had hung [a] poster after the 2004 murder of Dutch filmmaker Theo van Gogh by a Muslim extremist [that said]: "Stop the tumour that is Islam. Theo has died for us. Who will be next? Resist now! National Alliance, we will not bow down to Allah. Join now." ...

The high court on Tuesday explained its ruling by saying that it is not a crime to express insults towards religion. "Not even if that happens in such a way that the devotees feel their religious feelings are hurt", the court said.

The highest judge in the Netherlands said that only if a needlessly offensive remark is 'explicitly' geared towards a certain group, which is distinct from others in society based on its religion, can there be a matter of group insult as defined in article 137c of the Dutch criminal code. For an insult towards a group to be punishable, that group has to be 'collectively' hit in what defines that group, namely religion. Criticism towards opinions that exist within a group or the behaviour of people belonging to that group cannot be penalized, according to the ruling....

The high court said the same criteria of group insult will apply in the prosecution of Geert Wilders....

Thanks to Religion Clause for the pointer.

Maggie Gallagher, blogging at National Review Online's The Corner, suggests (more or less) a revival of the tort of alienation of affections, which has been abolished in the vast majority of states:

An updated tort of adultery could look something like the document below the fold. This tort (drafted for Minnesota, don't ask me why) could be either expanded to include "commerical enterprises that intentionally and explicitly attempt to profit from acts of adultery," or we could choose to limit it to commerical enterprises. Such a tort would not prevent websites from facilitating hookups that include adulterous ones. It would prevent them from explicitly incorporating adultery into their advertising plan.

– DRAFT –

Minn. Stats. sec. 517.23. Intentional interference with marriage.

A person is liable for damages to a spouse for intentional interference with the spouse’s marriage [marital relationship] that causes injury to the spouse. An act of adultery between the defendant and the spouse of the plaintiff when the defendant knew or should have known that the plaintiff’s spouse was married shall constitute proof of intentional interference with the plaintiff’s marriage. [Damages awarded pursuant to this statute shall not exceed $500,000. This action shall be instituted within two years of the discovery of the adultery.]

(Show the commentary that accompanies the proposal.)

COMMENTARY

(a) This proposed new tort reflects the policy articulated in Minnesota Const., art. I, sec. 8: “Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive....” Allen v. Pioneer Press Co., 40 Minn. 117, 122, 41 N.W. 936 (1889) (constitutional section is merely declaratory of general fundamental principles and leaves to legislature a wide range of discretion). It resembles the widely recognized action of tortious interference with contract, the contract in this case being the contract of marriage. Despite some similarities between this new tort and the common law actions for alienation of affections and criminal conversation, there are distinct differences: this action is much narrower in scope and explicitly provides in the statute for proof of what constitutes intention and interference. See Lockwood v. L, 67 Minn. 476, 70 N.W. 784 (1889).

(b) Intentional interference with a marriage simply requires proof that the act of adultery, which constitutes sexual infidelity and breach of the marriage “contract,” occurred at or after the defendant has or should have knowledge that the person with whom he or she is having sexual relations is married.

(c) Proof of interference in a marriage consists statutorily of proof of an act of adultery, sexual infidelity. During marriage, spouses owe to each other fidelity, because marriage is a monogamous, sexually exclusive relationship, distinguishing marriage from a dating or cohabiting relationship.

[(d) This statute includes a specific cap on damages, which does not violate Minn. Const. art. I, sec. 8. See Schweich v. Ziegler, Inc., 463 N.W. 2d 722 (1990), rehearing denied. Furthermore, the statute of limitations contained in this statute assures that the plaintiff must act within two years of discovery of the injury and resulting damage. See Lourdes High School of Rochester, Inc. v. Sheffield Brick & Title Co., 870 F.2d 443 (8th Cir. [Minn.] 1989).]

NOTES

(1) This proposed new tort borrows not only from the common law tort of alienation of affection and the crime of criminal conversation (only nine states recognize one or both) but also from an analogy to the tort of intentional interference with a contract. It reduces the ambiguity of the alienation of affection action and adopts many of the elements of the criminal conversation statutes that had to be narrowly drawn because they punished conduct criminally. Its relative virtues include: (1) narrowly drawn remedy for injury to a marriage which presently is uncompensated; (2) exclusive definition of interference as an act of adultery, sexual relations with the spouse of the plaintiff, which eliminates difficult issues of causation; (3) intentional defined as simply sexual relations with the plaintiff’s spouse with knowledge (actual or presumed) that he or she is married.

In the American Law Institute’s Principles of the Law of Family Dissolution, the Reporters urge that rather than judge the moral relations of spouses in the divorce law, tort law and to a lesser extent criminal law should offer remedies. ALI Principles of the Law of Family Dissolution, sec. 5.02(2) (“Losses are allocated under this Chapter without regard to marital misconduct, but nothing in this Chapter is intended to foreclose a spouse from bringing a claim recognized under other law for injuries arising from conduct that occurred during the marriage.”); see also id. at Chapter 1, § 2. Increasingly, because divorce law does not provide sufficient remedies for a spouse who has been injured by the conduct of the other spouse or a spouse with another person, the law of tort offers the possibility of redressing a wrong that injured another, for example, recovery for fraudulent inducement to marry, communication during marriage of a sexually transmitted disease due to infidelity during marriage, violence during marriage resulting in physical injury to a spouse. This statutory tort reflects this same trend by providing a remedy for another case where the law of marriage and divorce fails to acknowledge and redress an injury to a spouse and the marital relationship.

(2) Need for this remedy: damage to an individual marriage and to the social institution of marriage that anchors the family. See William R. Corbett, A Somewhat Modest Proposal to Prevent Adultery and Save Families: Two Old Torts Looking for a New Career, 33 Ariz. L. J. 987 (2001).

(a) As with many torts recognized within the last seventy-five years, this tort permits recovery for emotional and relational harms. Marriage and family relationships, among society’s most important, have been left unprotected by comparison to economic and employment relationships. Currently grievous wrongs are suffered leaving people with the belief that they are victims and the law provides no redress. It so happens that women, rather than men, suffer more from adultery simply because more married men engage in adultery (Eric Rasmussen, An Economic Approach to Adultery [http://www.law.harvard.edu/programs/olin_center.html]) and if adultery leads to divorce as it often does, then collateral losses to women are often greater (economic). Men, however, suffer greater emotional injury from their wives’ adultery.

(b) Despite the dominance of “no-fault” divorce laws, the spouses themselves continue to think in fault terms and to attribute blame to their spouse. What they discover is that the promises the other spouse made at the time of marriage, the law and the court will not enforce. James Herbie DiFonzo, Beneath the Fault Line: The Popular and Legal Culture of Divorce in Twentieth Century America (1997).

(c) Infidelity continues to be the most frequently cited reason for obtaining a divorce. Paul Amato & Denise Previti, People’s Reasons for Divorcing: Gender, Social Class, the Life Course, and Adjustment, 24 J. Fam. Issues 602 (July 2003).

(d) “Permanent availability,” as described by Norval Glenn in the Journal of Marriage and the Family, describes the cultural phenomenon of continual examination even of those persons who are married as a potential mate, a phenomenon influenced by easy, quick “no-fault” divorce. Norval D. Glenn, “The Recent Trend in Marital Success in the United States,” 53 J. Marriage & Fam. 261, 268 (quoting Bernard Farber, “The Future of the American Family: A Dialectical Account,” 8 J. Fam. Issues 431 (1987).

(e) Traditional remedies for adultery, in fault-based divorce law, establish the principle that spouses have an obligation of fidelity to each other. This tort establishes that others, outside of the marriage bond, have an obligation to respect that pledge of fidelity as well, by not engaging in sexual relationships with someone else’s spouse.

(Hide the commentary that accompanies the proposal.)

Now I think marriage is (generally speaking) a very valuable institution, and that adultery is (almost always) a very bad thing.

But not all bad things are the sorts of bad things that the legal system -- and in particular the tort liability system -- should address. Sometimes the proposed rules seem likely to cause much more bad than they would prevent. And often even if a narrow proposal would be proper, the proposals that are actually offered are much broader.

Here, for instance, are just a few of the problems with the above proposal:

1. Gallagher might be seeking a tort of adultery, but the proposed statute isn't limited to adultery; it deliberately makes actionable "intentional interference with the spouse's marriage that causes injury to the spouse," and gives adultery just as one special case. The statute would literally apply to someone who urges a friend to leave an abusive -- or unfaithful or just unsuitable -- spouse, or (say) a mother who effectively badmouths her son-in-law to her daughter. (This in fact was possible under the alienation of affections tort, though at least that tort often had a limited privilege for such statements.)

2. Families are, by and large, financial units, at least until a divorce; a husband's income benefits the wife, and vice versa. This is true even as to non-community-property, at least so long as the couple does not divorce (and much infidelity is indeed ultimately followed by reconciliation, not divorce, a result that I take it Gallagher would praise).

So say that Henry and Wanda are married, and Wanda has an affair with Alex. Henry sues Alex, not Wanda. (Presumably he could sue Wanda under the first sentence, though not if the statute is revised to avoid problem 1 by being limited to the second sentence; but if Henry plans to stay with Wanda, there's little benefit in suing her.) So Alex, a culpable party, loses up to $500,000 (if the damages cap is implemented). But Wanda, the more culpable party -- she's the one who broke the vows, after all -- actually gains $250,000, because her family will now get the $500,000. (Presumably the family would gain less if Wanda reconciles with Henry before the decision or settlement, since then Henry's damages would seem less; but I suppose a jury could find $500,000 worth of emotional distress, loss of trust, and such on Henry's part even if Henry takes Wanda back.)

I know that in principle tort liability for interference with contract by an outsider may exceed contract liability for the breach by the contracting party. But that has always struck me as a weakness of that branch of tort law; the better view, I think, is that an aider to misbehavior should be no more punished than the primary misbehaver himself, absent some special circumstances (e.g., the misbehaver is a child). And this proposal would exacerbate the weakness, by letting the breaker of the vows use the law to profit at the expense of her coconspirator (in a sense) in the enterprise.

3. Nor need this be iandvertent; consider a modern legal badger game: Wanda seduces Alex (or lets Alex seduce her; the line is often quite vague). Henry then threatens to sue. Alex settles, maybe not for the full $500,000 but for $100,000. The settlement doesn't hit the news. Wanda then seduces Andrew, Anthony, and so on, and each time Henry and Wanda pocket a settlement. All perfectly legal. But is it just? Not so much.

4. All this might be less of a problem if we thought this would vastly deter adultery, since with perfect deterrence there wouldn't be any recoveries. But of course people aren't going to be perfectly deterred; and some people -- especially those without enough assets to be worth suing -- won't be deterred at all. So the cheater who just wants sex would just have to get it from poorer partners.

Interestingly, this would probably have a sex-differential effect, to the extent heterosexual men find younger women more attractive and don't care as much about their partners' wealth or success, and tot he extent heterosexual women find successful men more attractive and don't care as much about their partners' youth. The man who is cruising for hot twentysomethings will find his prospective partners not much deterred, since they're largely judgment-proof. The woman who is more sexually attracted to men who have success and status will find her prospective partners more deterred, since they have more money to lose. I'm not in principle troubled by such sex-differential effects; most laws have some such effects to some extent. But the effects do help illustrate, I suspect, the likely perverse effects of such laws.

5. Of course, for every Henry who is willing to reconcile with his Wanda, or is even complicit in the affair (as in 2 or 3), there may be many who are reluctant to reconcile. The same is true if we flip the sex of the parties. They may initially be reluctant to acknowledge the affair to themselves, but once confronted with it, they may find it hard to take the cheating spouse back, even if there are good reasons for it (e.g., to preserve an intact household for the kids).

How will the prospect of a massive damages recovery affect that? Absent alienation of affections law, a Henry might well try to avoid seeing evidence of adultery, and once confronted with the adultery might well conclude that there's much loss for the family in a divorce and little gain (other than to his own pride and dignity). But if a spouse's adultery, especially with a rich partner, equals money to the victim spouse, the incentives (both conscious and subconscious) are changed. Spotting adultery becomes less unappealing, because there's a possible financial upside as well as emotional downside in identifying it. And once the adultery is discovered, taking the cheating spouse back promptly may well diminish the recovery (a jury is less likely to find damages if a major source of damages, a broken home, is absent).

What's more, the victim spouse will know that in the event of a divorce he or she will at least have an extra $500,000 to play with, money that needn't be shared with the cheating spouse. Why not split up?, the victim might reason -- at least I'll be well-off enough to live in comparative comfort, and maybe even pick up a better new spouse.

6. And of course let's not forget the obvious problems of proof and risk of perjury. Was there an act of adultery? Should the defendant have known the other person was married? Much of the time this will depend on what was said and done behind closed doors, and who seems more trustworthy and appealing to the jury. And this is even more so today than in the past, given that men and women have innocent friendships more often than decades ago; evidence of dinners together will no longer be particularly probative, and it will be all a swearing match among three people who may have all sorts of financial and emotional motives to lie. That's in fact one reason the alienation of affections tort has mostly been abolished.

As I said, you can love marriage and hate adultery without thinking that more tort liability will make things better.

Thanks to commenter Subpatre for passing it along, apropos these legislators' proposal to ban such speech, among other kinds of speech:

for the 2010 Annual Meeting; the topic is constitutional interpretation vs. constitutional construction (to get details follow the link).

The latest withdrawal of a pretty high-level nominee (this time, Chas Freeman) made me wonder why there seem to be many more such in the early phase of this Administration than in past Administrations. Some possible explanations:

1. I'm misremembering, and there were roughly as many in past Administrations.

2. This Administration is unusually poor at vetting people. (If so, why?)

3. This Administration's adversaries are unusually good at torpedoing people. (Doesn't seem quite right, especially given how badly the Republicans were beaten in the election.)

4. This Administration is unusually willing to cut nominees loose. (If so, why?)

5. The threshold for disqualifying a nominee has fallen in the last few decades. (If so, why?)

6. This Administration is unusually willing to propose controversial nominees. (But many of the nominees have not been defeated because their policies or personalities were controversial.

I'm sure there must be others. What are your thoughts on this?

is being blogged, mostly by University of Denver law students, at The Race to the Bottom (a faculty-student collaborative blog). For more, see here.

From a recent divorce case, in which the father's actions were apparently held against him in deciding child custody:

[Father] conceded that the children were very upset when he performed a science experiment to demonstrate that a frog would remain in a pot of slowly heated and then boiling water until it died.

Prof. Rick Hills (PrawfsBlawg) has more on the bill, and on why it's unconstitutional.

My friend Prof. Rick Garnett has also posted an open letter drafted by Doug Laycock -- one of the leading Religion Clauses experts in the nation -- which I had the pleasure of signing, together with several other professors. I'm pretty sure that the signatories disagree on a great deal about Religion Clauses law, but we certainly agree on this. And my Mayer Brown colleague Philip Lacovara has published a letter with his own legal analysis, with which I also agree. (I learned of the letter from a religion-and-the-law discussion list, entirely outside my Mayer work.)

The proposal seems to have been tabled by the legislature for now. Let's hope it stays that way.

That's what IowaHouse Bill 229 (introduced by Richard Anderson and Mary Mascher) would do:

3. A person shall not distribute any campaign material concerning a target candidate with the intent to encourage the recipient of that campaign material to vote against that target candidate, without first ... obtaining, in writing, the prior consent of the beneficiary candidate to the distribution of the campaign material.

4. A person shall not distribute any campaign material that contains a cartoon, caricature, or defacement of the personal likeness of a target candidate.

5. A person shall not distribute any campaign material that contains photographs or other depictions of human role playing, except of a candidate who has approved the campaign material.

6. A person shall not distribute any campaign material regarding a vote cast by a target candidate who is a member of a house of the general assembly if a majority of the membership of the house of which the target candidate is a member voted in the same manner as the target candidate and if the majority of those members of that house of the general assembly who are affiliated with the political party which is not the party of the target candidate voted in the same manner as the target candidate.

7. Campaign material that refers to a prior vote cast by a target candidate on an issue must disclose all of the following:
a. The total votes cast for and against the issue.
b. The total votes cast on the issue by members of each political party of the membership of the legislative chamber of which the target candidate is a member.

Thanks to Prof. Rick Hasen (Election Law Blog), who has more on this. He and I of course agree that this proposal is blatantly unconstitutional.

according to local media reports," reports CNN.

One of the men (age 24) stated that "he had the right to be there, because Sawadi had breast-fed him as a baby and was therefore considered to be a son to her in Islam, according to Al-Watan," and "that his friend [also age 24] was escorting him as he delivered bread for the elderly woman." One man "was sentenced to four months in prison and 40 lashes" and the other "to six months in prison and 60 lashes." The Telegraph (UK) reports that one of the men, the one who had been breastfed, "was Mrs Sawadi's late husband's nephew."

Thanks to Religion Clause for the pointer. If you're interested in news on religion and the law in the U.S. and elsewhere, you should regularly visit the site, or subscribe to it via RSS or by e-mail (check out the right sidebar a few pages down).

From The Press Trust of Indian:

Prime Minister Manmohan Singh today met a group of Muslim girls [on the occasion of Milad-un-Nabi, Mohammed's birthday] ... [and] said "our Constitution gives full freedom to the people to practice any religion of their choice, but it does not give anyone the license to criticize or run down other religions."

Thanks to Religion Clause for the pointer.

If your answer to either question is yes, can you please tell me a bit about the circumstances? I have in mind weapons such as pepper spray or stun guns, which are designed specifically to be nondeadly defensive weapons, and I'm looking for uses by people other than police officers and security guards. And I'm looking for a whole range of details. In particular:

(1) Why do you use them instead of guns? Is it because it's illegal for you to carry or possess a gun (e.g., because you live in a jurisdiction in which licenses to carry are unavailable, or because you are under 21 and carry licenses are only available to people 21 and above, or because you have some criminal conviction that bars possession of a gun)? Or do you prefer nonlethal weapons, and, if so, exactly why? (I can guess why people might, but I'd like to hear your own views.)

(2) Have you had any incidents in which you've used such weapons for self-defense? How did they happen? How happy were you with the defensive weapon's effectiveness?

Please post your answers, or, if you'd rather just e-mail me, please do so, at volokh at law.ucla.edu.

I realize, by the way, that these weapons can in principle be deadly, but so can fists. I call the weapons nondeadly because only a tiny fraction of attacks with them -- even ones that connect -- lead to death.

From Texas S.B. No. 11, proposed penal code § 33.06(b):

A person commits an offense if, with the intent to benefit, to promote, or to further the interests of a criminal street gang or to increase the person’s standing, position, or status in the criminal street gang, the person uses the Internet, including distributing, selling, transmitting, or posting on the Internet an audio, video, or still representation of a person engaged in criminal activity, to ... advertise the presence of the criminal street gang in a specific geographic location.

Constitutional? Thanks to BNA's Internet Law News for the pointer.

can you go 10 miles south, 10 miles west, and 10 miles north, and end up exactly where you started? (Assume away real-world transportation difficulties.) A fun puzzle I heard from my father when I was a child.